HOLIDAY TURKEY FACTS (WE BET YOU DIDN'T KNOW)

Did you know? 

  • As far back as 1000 A.D., Native American Indians raised turkeys for food. Aztec Indians in Mexico were raising them as early as 200 B.C.

  • Turkeys originally existed in the eastern US. and Mexico.

  • Turkeys are actually a type of pheasant.

  • The heaviest turkey weighed in at 86 pounds. Please pass the stuffing!

  • Turkeys have excellent and a wide range of vision, about 270 degrees.

  • Mature turkeys have about 3,500 feathers. I wonder who took the time to count them?

  • The turkey industry grosses over $1billion a year.

  • The Average American consumes over 15 pounds of Turkey per year.

  • Americans will cook over 45 million turkeys on Christmas Day.

  • 235 million turkeys were raised in 2014. The record is 302.7 million in 1996.

  • Over 770 million pounds of cranberries are consumed on Thanksgiving.

  • Turkey, like poultry, is lower in cholesterol than beef an many other meats. The dark meat (thigh, legs,) contains more fat and cholesterol than white meat. So, that's why dark meat tastes so good!

  • Male Turkeys are called "Toms" or "Gobblers", female turkeys are called "Hens" and baby turkeys are called "poults".

  • How's that taste? Old Toms are better tasting then young toms. Conversely, young hens taste better than old hens.

  • In 2016, there was over 100,000 phone calls to the Butterball Turkey Talk Line. The average call time was 3 munites, and 8 seconds.

  • Only Tom turkeys "gobble".

  • That long, loose skin that hangs down from a turkey's neck is called a "wattle".

  • Turkey eggs are tan in color and speckled with brown. They are about twice as large as chicken eggs.

  • Wild turkeys can fly 55 miles per hour, and run 25 miles per hour.

  • In 1947, the first Presidential pardon was ceremoniously given to a turkey.

  • The  "Turkey Trot" was named after how turkeys walk.... in short, jerky steps.

  • Sleepy after the big meal? Turkey contains an amino acid called "Tryptophan". Tryptophan sets off a chemical chain reaction that calms you down and makes you sleepy.

  • The Native American name for turkey is "Firkee"

  • You can tell the sex of a turkey from their poop. Males form a spiral on the ground, while females leave "J" shaped poop. I'm sure you wanted to know this.

  • Mature turkeys have over 3,500 feathers.

  • Native Americans considered turkeys to be weak. As a result, they would only eat them when food was scarce, or in times of famine.

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NEW BUSINESS SUPPORT GRANT ($10,000-$20,000) NOW AVAILABLE TO ELIGIBLE CKL BUSINESSES DURING THE SECOND SHUTDOWN

During the second lockdown beginning December 26, the Ontario Small Business Support Grant will provide a minimum of $10,000 and up to $20,000 to eligible small businesses required to close or restrict services.

Eligible small businesses include those that:

  • are required to close or significantly restrict services subject to the shutdown effective 12:01 a.m. on December 26, 2020;
  • have less than 100 employees at the enterprise level; and
  • have experienced a minimum of 20 per cent revenue decline in April 2020 compared to April 2019

Essential businesses that are allowed to remain open will not be eligible for this grant.

Further details, including how to apply, will be announced in January 2021.

 

More information is available here:  https://news.ontario.ca/en/backgrounder/59788/post-4
 
Businesses that are impacted by the provincial shutdown will also be eligible for the property tax and energy cost rebates.

Business can apply for the Rebates at www.ontario.ca/smallbusiness

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CHEAT SHEET FOR CKL BUSINESSES IN THE SECOND SHUTDOWN - WHAT YOU NEED TO KNOW TODAY.

All businesses in the CKL are subject to these general rules or guidelines during the provincial shutdown, beginning December 26:

  • All businesses open must prepare, post and make available a COVID Safety Plan. A sample plan is available here: https://www.ontario.ca/page/develop-your-covid-19-workplace-safety-plan

  • All businesses or facilities that engage in retail sales to the public must post a sign in a location visible to the public that states the maximum capacity they are permitted to operate under

  • Businesses must ensure that masks or face coverings are worn by any person in the indoor area of the business or organization, with limited exceptions.

  • Workplaces must screen any workers or essential visitors entering the work environment. Get the Screening Tool for Workplaces here: http://www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/workplace_screening_tool_guidance.pdf

  • Businesses or places must not permit patrons to line up inside the businesses or place, or to line up or congregate outside of the business or place unless they are maintaining a physical distance of at least two meters from other groups of persons and wearing a mask or face covering that covers their mouth, nose and chin unless they are entitled to an exception set out in the regulation.

  • PPE that provides protection of the eyes, nose, and mouth is required if a worker is required to come within 2 meters of another person who is not wearing a face covering and not separated by plexiglass or some other impermeable barrier.

  • All businesses or facilities must limit capacity so that every member of the public is able to maintain two meters of physical distancing from every other person, and limit the number of people occupying any room that is open to the public to 50% capacity of the particular room. Some businesses or facilities have additional capacity restrictions that apply beyond the general capacity requirements.

  • Businesses shall ensure that equipment, washrooms, locker rooms, change rooms, showers that are accessible to the public are cleaned and disinfected as frequently as is necessary to maintain a sanitary condition

A full summary of the new shutdown measures is available here, including sector-specific rules and guidelines:

https://embed.documentcloud.org/documents/20433181-provincewide-shutdown-deck-december-21-2020-final/?embed=1&fbclid=IwAR1MoouD9hTBqtFS4euVppAiKWjzTH-6La6wN4Xzm4ePOKfhgrGzx4Nq8C0

 

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NEW, FLAT-RATE TAX DEDUCTION FOR WORKING-FROM-HOME EMPLOYEES IN THE CKL

The CRA has announced a new policy for employees and their ability to deduct home office expenses for the 2020 taxation year.

The policy is temporary and made in order to accommodate employees who were required to work from home due to the COVID-19 pandemic during the 2020 tax year.

Employees who were required to work from home at least 50% of the time for at least four consecutive weeks during 2020 due to the pandemic may use the new “simplified process”.

Under that process, employees do not need to calculate the size of their workspace, keep detailed supporting documents, or have their employer sign a Form T2200 (as would normally be required in order to claim home office expenses).

This flat rate method is only available for 2020.

Employees eligible to use the simplified process can deduct $2 for each day they worked at home during 2020 due to COVID-19, up to a maximum of $400 (i.e. 200 working days).

Vacation days or other leave days are not eligible for this deduction. Employees choosing to use the simplified process cannot claim any other type of employment expenses for the 2020 tax year. Employees claiming the flat rate deduction should complete Option 1 of new Form T777S.

Alternatively, employees who wish to deduct their actual home office expenses in 2020 can continue to use the detailed method from prior taxation years.

The CRA has created simplified forms (T2200S and T777S) and an online calculator to assist employees in that process.

Here is the announcement:

https://www.canada.ca/en/revenue-agency/services/tax/individuals/topics/about-your-tax-return/tax-return/completing-a-tax-return/deductions-credits-expenses/line-229-other-employment-expenses/work-space-home-expenses/what-changes.html

Here is the calculator:

https://www.canada.ca/en/revenue-agency/services/tax/individuals/topics/about-your-tax-return/tax-return/completing-a-tax-return/deductions-credits-expenses/line-229-other-employment-expenses/work-space-home-expenses/calculate-expenses.html

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$25,000 TO EMPLOYEE FIRED AFTER RAISING COVID-19 SAFETY CONCERNS

A farmhand complained to his employer about the safety conditions at the farm, or workplace.

He did so shortly after a COVID outbreak at the farm, including the death of a co-worker related to the outbreak.

After raising these concerns, the employer told the farmhand that he would be shipped back to Mexico and bought him a plane ticket.

The employee ultimately stayed in Ontario, believing he had been fired.

Several months afterwards, the employer offered a return to work to the farmhand, but he refused.

The worker filed a complaint with the Ontario Labour Relations Board alleging he was fired for raising safety concerns. The employer said that the worker resigned, and he had exercised no protected rights under health and safety legislation.

The Board decided the worker was fired because he raised health and safety concerns. This was because the worker was fired the day after he raised the health and safety concerns and during a confrontation about the worker allegedly talking to the media.

The Board concluded that the farm had engaged in a prohibited reprisal under health and safety legislation. The Board said this reprisal was more serious because of the power imbalance between the farm and the seasonal worker. The worker did not speak English and relied on the farm for wages, shelter, and transportation. The Board ordered the farm to pay the worker more than $25,000 in damages for lost wages, loss of future earnings, and pain and suffering among other things.

The Board did not reduce the damages because the worker refused to accept re-employment. The Board said it was reasonable for the worker to refuse without assurances that the employer would correct issues or some proof that it had already done so.

What does this mean for employers? Health and safety concerns raised by workers about COVID-19 should be taken seriously, investigated, and, if necessary, remedial action taken to control the hazard.

This also reminds employers that workers cannot generally be threatened with or subject to a reprisal for the bona fide exercise of rights under health and safety legislation.

Workers can still be disciplined for misconduct unrelated to the bona fide exercise of health and safety rights under legislation. Where this misconduct occurs around the same time as an exercise of safety rights, employers should seek legal advice to ensure they do not inadvertently violate the reprisal protection of health and safety legislation. There is a reverse onus in a reprisal case. It is the employer's burden to prove that a reprisal did not occur. This can be challenging in any case. It is particularly difficult in a case like this where there was conflicting testimony from witnesses, some of whom speak different languages, and little or no documentary evidence.

The Case:

Flores v Scotlynn Sweetpac Growers Inc., 2020 CanLII 88341 (ON LRB).

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OUR FUN, ANNUAL CHRISTMAS TIPS FOR A LAWFUL AND LEGALLY-COMPLIANT HOLIDAY

It will be here before you know it. Our (non-exhaustive) tips to you and your family for a safe, fun and legally-prudent Christmas Day for 2020:

1)       On Christmas Eve after early bed time, apply a liberal, but discreet, thin layer of baby powder on the floor outside each child’s room to discourage middle-of-the-night stocking snooping;

2)       When you retire on Christmas Eve to wait for Santa, fasten green painter’s tape plentifully between the newel posts at the top of the stairs to further discourage over-enthusiastic stocking visitation before Mom and Dad are up, dressed, coffeed-up and ready to go (enough to ensure a child cannot pass through the tape wall without sound and extensive effort);

3)       Turn over the toy gift and actually untie/unravel all of those annoying twist-ties holding your child’s toy in its excessive plastic packaging – don’t try to jam scissors or a sharp knife in to that tight space to try to cut the ties where they wrap around the toy itself; 

4)       Prevent your child (and husband/father) from testing the 9 volt battery for the new toy by pressing it on their tongue – this has actually caused injury and emergency room visits;

5)       Take out all of the pins from your new shirt before trying it on; 

6)       Avoid conveniently grabbing the sharp knife from the kitchen to cut open the hard plastic packaging for that toy – take the time to find and use the correct tool, like scissors or a utility knife with a guard;

7)       Pick up the broken pieces of the hard plastic wrapping from the floor after the gift unwrap – avoid the pieces getting lodged in a barefooted, housecoat-wearing, messy-haired family member;

8)       Read the Pot of Gold chocolate index before selecting – there are reported cases of severe allergic reaction caused by mistakenly believing your choice was the cherry-filled (i.e., avoid the marzipan one);

9)       Don’t carve the turkey after consuming three (3) alcohol drinks or more;

10)     Leave adequate space between you/your children and the Christmas tree branches when retrieving gifts under the tree – eye lacerations are a common Christmas morning accident;

11)     Remind your elderly family members at the Christmas dinner to chew their meat thoroughly – most Christmas mishaps often involve choking at X-Mas dinner;

12)     Ensure the zipper is drawn down before your enthusiastic child tries on that new jumper, coat or hoodie – a common source of eye injury on the holiest of mornings; and

13)     Pull the knife across the avocado and twist it (to remove the stone), rather than stabbing down and prying it out – there are recorded emergency room visits about this. 

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VACCINATION FOR KIDS AND SEPARATED PARENTS - WHO DECIDES? DO THE REST OF US HAVE A SAY?

Vaccines are reportedly on the way.

So, what happens if there is conflict between separated parents about whether a child should be vaccinated?

Who decides?

What about the public health priority?

“Two recent decisions provide a helpful hint as to how our courts might approach disputes between parents about whether their children should be vaccinated.

In Tarkowski v. Lemieux [2020] O.J. No. 2627, both parents argued at trial for sole custody of their 6-year-old daughter. The court ultimately granted custody to the mother with the proviso that the father would have custody over all vaccination-related decisions.

Justice Penny Jones noted evidence that the mother had a checkered history regarding her child’s vaccinations, including a belief that vaccines might be linked to autism or immune system problems.

The court granted the father decision-making power with respect to vaccinations after considering the prevalence and impact of the COVID-19 pandemic. Notably, this decision-making power included the authority to vaccinate the child with a future COVID-19 vaccine.

The court approached this issue with an eye towards the greater public’s health in addition to the child’s health. As Justice Jones stated at para. 74, “Since children and young people often show little or no reaction to the virus, a decision to vaccinate a child may be informed by a public health concern that COVID-19 is a virus that is easily spread and which disproportionately harms older people, and people with challenged immune systems. Ultimately, a decision to vaccinate [the child] may be a decision to protect other vulnerable people against [the child] spreading the disease.”

In another decision, B.C.J.B. v. E.R.R. [2020] O.J. No. 4273, the court heard a motion that addressed a father’s request to be granted decision-making authority over having their child vaccinated.

At the heart of the dispute was determination of the applicable test for transferring decision-making authority over vaccinations from one parent to the other, prior to a trial of the issue. The father argued that the test was the “best interests of the child,” while the mother, who had sole custody of the child pursuant to an early parenting agreement, argued that in order to change the status quo, the father needed to establish “exigent circumstances.”

The court ultimately held that since this was not a variation case, the focus ought to be on the best interests of the child. The crux of the father’s argument in support of vaccinating the parties’ son was that the child, who had not been vaccinated in accordance with the standard Ontario vaccinations for children of his age, was at an elevated level of risk due to the pandemic, and the best interests of the child therefore necessitated a ruling pretrial.

The motion judge, Justice Alex Finlayson, ruled in favour of the father, stating at paragraph 124, “I find the child is already exposed to risk by not being vaccinated as it is. It is not an answer to argue that the child has not contracted a disease during the last 10 years, so what’s the harm in waiting a few more months to trial. This, in effect, is what the mother argues. If it is in the child’s best interests to act now, then the Court should intervene.”

The motion judge very deliberately stated that the father’s pretrial vaccine powers did not extend to a COVID-19 vaccine, which would need to be addressed at trial.

A takeaway for counsel from these cases is that once a COVID-19 vaccine is released, the best interests of the child will most likely determine whether a child should be vaccinated, irrespective of the de facto custodial parent’s personal views on vaccinations.

It remains to be seen how the court will balance consideration of a child’s best interests with broader public health interests and the prevalence of anti-vaccination beliefs, but these two cases point in the direction of a likely wider judicial affirmation of the necessity of COVID-19 vaccination for children, even where one parent objects.”

Credit:

Garry J. Wise, Simran Bakshi and Joshua Prizant, Wise Law Office, via Lexology.com, Dec. 9, 2020

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CHRISTMAS BONUSES AND HOLIDAY GIFTS BY EMPLOYERS – ENROLLMENT IN THE ‘JELLY-OF-THE-MONTH’ CLUB THIS YEAR? READ THIS BEFORE KIDNAPPING YOUR BOSS ON CHRISTMAS EVE

Holiday bonuses (and gifts) are commonly appreciated, morale-boosting and an opportunity for employers to express gratitude to employees collectively at the end of the work year.

However, if expectations are not met, they can also cause strife, conflict and, in some cases, litigation. 

Bonuses are not legislatively governed in Ontario; rather, they are considered a contractual matter between employers and employees. There is no legal requirement for an employer to pay a holiday bonus, unless contractually required to do so. However, if a bonus paid to an employee on a year-over-year basis evolves into part of that employee’s overall compensation, the employer may by law be required to pay it the employee in future, including during a reasonable notice period following a termination without cause.  Employers may also adopt a workplace policy regarding bonuses, which typically govern availability, amount and other criteria. 

Generally, if employers pay a holiday bonus, or an amount beyond employees’ regular pay, it is either:  

  1. a fixed, recurring holiday bonus annually, usually of a fixed amount, not typically based on work performance or the financial success of the employer’s business;
  2. a pre-determined bonus amount, usually based on either, or both, the employee’s and the business’ performance, often based on set criteria pursuant to a workplace policy; or   
  3. a purely discretionary bonus, decided by the employer each year.

If an employer pays a holiday bonus historically, but changes its mind this year, like Mr. Shirley, an employee’s employment contract should be considered. If the holiday bonus is an important term, the employee may legally be entitled to the bonus. If there is no employment contract, the holiday bonus may have formed a part of the employee’s annual compensation, giving the employee a potential claim to the holiday bonus.

Before employers change their holiday bonus policy or traditional practice, they should review their employment contracts and workplace policies and, if they do not require payment of the holiday bonus, notify employees in advance of the decision to pay no, or a significantly less, holiday bonus. How much notice should be given will likely vary between employees, depending on their duration of employment, nature of their position and even age. 

If an employee is terminated without cause, the employee may be able to successfully claim payment of a holiday bonus as part of the wrongful termination damages. It will depend on the terms of the employee’s employment contract and, if none, whether the bonus would be considered a recurring part of the employee’s annual compensation. If the holiday bonus has been purely discretionary by the employer, it is likely the employee’s claim would not be successful. 

Generally, in Ontario employment law, if an employer gives an employee a holiday gift (not a payment of money), it is considered by the Court to be discretionary, gratuitous and not binding on the employer in future.

However, a workplace governed by a collective bargaining agreement may be different. In a recent case in Quebec, an arbitrator dismissed a grievance of the employer’s unilateral decision to stop giving employees a $50 gift card at Christmas. It was considered a discretionary decision in this case, based on the specific language of the collective bargaining agreement. However, a different outcome may have been reached for different collective bargaining terms. 

For example, other arbitral decisions in Quebec have held that Christmas gifts by employers were determined to be conditions of employment and, therefore, protected by the ‘vested-rights’ clauses in those collective bargaining agreements. Employers that unilaterally stopped these holiday gifts faced a costly and unfavourable grievance process.

Therefore, if you get a “Jelly-of-the-Month Club” card this year, like Clark W. Griswold, when you were expecting much more based on years past, you may have a claim against your employer, but it will depend on your employment contract, if any, past practices by the employer, and whether your historically-received holiday bonus was recurring, not governed by any workplace policy and not nominal in value.

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CHRISTMAS TREE SAFETY TIPS

Both real and fake Christmas trees can conflagrate in mere seconds, filling the room with smoke and fire that can spread relentlessly through your entire home.

Sorry, we don’t mean to be The Grinch, but many festive families do not give enough attention to these incendiary homages.

The record is rife with terrible stories about avoidable injury and damage. Even your alarms may not give enough advance warning to keep pace with the agility and speed of the flames.  

 This holiday season, consider taking these steps, if you do not already:

•    Look for a tree with vibrant green needles that are hard to pluck and don't break easily from its branches. The tree shouldn't be shedding its needles readily
•    Always place your tree away from heat sources like fireplaces, radiators, candles, heat vents or lights and keep the tree base filled with water to avoid a dry out
•    Double check your home alarms have fresh batteries and are working properly
•    Make sure all your indoor and outdoor Christmas lights are ESA approved (it should say on the box) and discard/recycle any damaged lights or bulbs
•    Any lights you use outdoors must be labeled suitable for exterior placement and be sure to plug into a ground-fault circuit interrupter protected receptacle
•    Keep all your holiday candles away from your Christmas tree, surrounding furniture and décor
•    Bedtime means lights off - don't forget to turn your Christmas tree light switch each night and, if you use an automated timer, double-check that it is working properly
•    When your tree begins to drop its needles profusely, it's time to say goodbye to your evergreen foliage until next year, even if your holidaying is not quite finished yet
•    If you buy a pre-cut tree, consider sawing off an inch or two from the stump of the tree so water can be easily absorbed

Happy holidays, from the GrinchWards!

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WELCOME TO YELLOW - WHAT YOU NEED TO KNOW TODAY

Here’s what Yellow looks like and means:

Organized public events, social gatherings and religious services, rites and ceremonies

  • Limits for functions, parties, dinners, gatherings, barbeques or wedding receptions held in private residences, backyards, or parks:

    • 10 people indoors

    • 25 people outdoors

  • Limits for organized public events and gatherings in staffed businesses and facilities:

    • 50 people indoors

    • 100 people outdoors

  • Limits for religious services rites or ceremonies, including wedding services and funeral services (apply regardless of the venue where held):

    • 30% capacity of the room indoors

    • 100 people outdoors

Restaurants, bars and other food and drink establishments

  • Require patrons to be seated; 2 metre minimum or impermeable barrier required between tables

  • Limit of 6 people may be seated together

  • Dancing, singing and performing music is permitted, with restrictions

  • Karaoke permitted, with restrictions (including no private rooms)

  • Require patron contact information for all seated patrons

  • No buffet style service

  • Line-ups and patrons congregating outside venues managed by venue; 2 metres distance and face covering required

  • Face coverings required except when eating or drinking only

  • Personal protective equipment, including eye protection, required when a worker must come within 2 metres of another person who is not wearing a face covering

  • Night clubs only permitted to operate as restaurant or bar

  • Establishments must be closed from 12 a.m. to 5 a.m.

  • Liquor sold or served only between 9 a.m. to 11 p.m.

  • No consumption of liquor permitted between 12 a.m. to 9 a.m.

  • Limit volume of music to be low enough that a normal conversation is possible

  • safety plan is required to be prepared and made available upon request

Sports and recreational fitness facilities

  • Maintain 2 metre physical distancing, unless engaged in a sport

  • Capacity limits:

    • 10 people indoors per room or 25 people outdoors in classes

    • 50 people indoors in areas with weights or exercise equipment

  • Maximum of 50 spectators indoors or and 100 outdoors

  • Capacity limits apply on a per-room basis if operating in compliance with a plan approved by the Office of the Chief Medical Officer of Health (Guidance for Facilities for Sport and Recreational Fitness Activities During COVID-19)

  • Team or individual sports must be modified to avoid physical contact with an exemption for high performance athletes, including parasport athletes, and professional leagues; maximum 50 people per league

  • Limit volume of music to be low enough that a normal conversation is possible; measures to prevent shouting by both instructors and members of the public

  • Face coverings required except when exercising

  • Increase spacing between patrons to 3 metres for areas of a sport or recreational facility where there are weights or exercise equipment and in exercise and fitness classes

  • Require contact information for all members of the public that enter the facility

  • Require reservation for entry; one reservation for teams

  • safety plan is required to the prepared and made available upon request

Meeting and event spaces

  • Capacity limits:

    • 50 people indoors

    • 100 people outdoors

    • exception for court and government services

    • religious services, rites or ceremonies, including wedding services and funeral services:

      •  30% capacity of the room indoors

      • 100 people outdoors

  • Booking multiple rooms for the same event not permitted

  • Maximum of 50 people per room indoors, where physical distancing can be maintained if venue operates in accordance with the approved plan from the Office of the Chief Medical Officer of Health (Guidance for Meeting and Event Facilities During COVID-19)

  • Establishments must be closed from 12 a.m. to 5 a.m.

  • Liquor sold or served only between 9 a.m. to 11 p.m.

  • No consumption of liquor permitted between 12 a.m. to 9 a.m.

  • Require contact information for all seated patrons

  • Limit of 6 people may be seated together

  • Limit volume of music to be low enough that a normal conversation is possible

  • safety plan is required to be prepared and made available upon request

Retail

  • Fitting rooms must be limited to non-adjacent stalls

  • Line-ups and patrons congregating outside venues managed by venue; 2 metre distance and face covering required

  • Limit volume of music to be low enough that a normal conversation is possible

  • For malls, a safety plan is required to be prepared and made available upon request

Personal care services

  • Oxygen bars, steam rooms and saunas closed

  • Require contact information from all patrons

  • safety plan is required to be prepared and made available upon request

Casinos, bingo halls and gaming establishments

  • Maximum of 50 people

  • Table games are prohibited

  • Casinos, bingo halls and gaming establishments can operate in accordance with a plan approved by the Office of the Chief Medical Officer of Health

  • Liquor sold or served only between 9 a.m. to 11 p.m.

  • No consumption of liquor permitted between 12 a.m. to 9 a.m.

  • Require contact information from all patrons

  • safety plan is required to be prepared and made available upon request

Cinemas

  • Maximum of 50 people indoors or 100 outdoors

  • 50 people indoors per indoor auditorium if cinema operates in accordance with the approved plan from the Office of the Chief Medical Officer of Health (Guidance for Movie Theatres During COVID-19)

  • Face coverings except when eating or drinking only

  • Drive-in cinemas permitted to operate, subject to restrictions

  • Liquor sold or served only between 9 a.m. to 11 p.m.

  • No consumption of liquor permitted between 12 a.m. to 9 a.m.

  • Require contact information from all patrons

  • safety plan is required to be prepared and made available upon request

Performing arts facilities

  • Maximum of 50 spectators indoors and 100 spectators outdoors

  • Singers and players of wind or brass instruments must be separated from spectators by plexiglass or some other impermeable barrier

  • Rehearsal or performing a recorded or broadcasted event permitted

  • Performers and employees must maintain 2 metre physical distance except for purposes of the performance

  • Drive-in performances permitted

  • Liquor sold or served only between 9 a.m. to 11 p.m.

  • No consumption of liquor permitted between 12 a.m. to 9 a.m.

  • Require contact information from all patrons

  • safety plan is required to be prepared and made available upon request

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CKL IN THE YELLOW ZONE - SAFETY PLAN NOW REQUIRED FOR MANY BUSINESSES - GET YOUR SAMPLE SAFETY PLAN HERE.

The CKL is moving to Yellow Zone as of 12:01 a.m. on Monday, December 7. 

Certain businesses in the CKL are now required to have a COVID Safety Plan, which must be available upon request. 

These businesses are identified below. 

Here is a link to a sample COVID-19 Safety Plan: 

https://www.hkpr.on.ca/wp-content/uploads/2020/12/COVID-Safety-Planning-Tool-HKPR.pdf

Restaurants, bars and other food and drink establishments

  • Require patrons to be seated; 2 metre minimum or impermeable barrier required between tables

  • Limit of 6 people may be seated together

  • Dancing, singing and performing music is permitted, with restrictions

  • Karaoke permitted, with restrictions (including no private rooms)

  • Require patron contact information for all seated patrons

  • No buffet style service

  • Line-ups and patrons congregating outside venues managed by venue; 2 metres distance and face covering required

  • Face coverings required except when eating or drinking only

  • Personal protective equipment, including eye protection, required when a worker must come within 2 metres of another person who is not wearing a face covering

  • Night clubs only permitted to operate as restaurant or bar

  • Establishments must be closed from 12 a.m. to 5 a.m.

  • Liquor sold or served only between 9 a.m. to 11 p.m.

  • No consumption of liquor permitted between 12 a.m. to 9 a.m.

  • Limit volume of music to be low enough that a normal conversation is possible

  • safety plan is required to be prepared and made available upon request

Sports and recreational fitness facilities

  • Maintain 2 metre physical distancing, unless engaged in a sport

  • Capacity limits:

    • 10 people indoors per room or 25 people outdoors in classes

    • 50 people indoors in areas with weights or exercise equipment

  • Maximum of 50 spectators indoors or and 100 outdoors

  • Capacity limits apply on a per-room basis if operating in compliance with a plan approved by the Office of the Chief Medical Officer of Health (Guidance for Facilities for Sport and Recreational Fitness Activities During COVID-19)

  • Team or individual sports must be modified to avoid physical contact with an exemption for high performance athletes, including parasport athletes, and professional leagues; maximum 50 people per league

  • Limit volume of music to be low enough that a normal conversation is possible; measures to prevent shouting by both instructors and members of the public

  • Face coverings required except when exercising

  • Increase spacing between patrons to 3 metres for areas of a sport or recreational facility where there are weights or exercise equipment and in exercise and fitness classes

  • Require contact information for all members of the public that enter the facility

  • Require reservation for entry; one reservation for teams

  • safety plan is required to the prepared and made available upon request

Meeting and event spaces

  • Capacity limits:

    • 50 people indoors

    • 100 people outdoors

    • exception for court and government services

    • religious services, rites or ceremonies, including wedding services and funeral services:

      •  30% capacity of the room indoors

      • 100 people outdoors

  • Booking multiple rooms for the same event not permitted

  • Maximum of 50 people per room indoors, where physical distancing can be maintained if venue operates in accordance with the approved plan from the Office of the Chief Medical Officer of Health (Guidance for Meeting and Event Facilities During COVID-19)

  • Establishments must be closed from 12 a.m. to 5 a.m.

  • Liquor sold or served only between 9 a.m. to 11 p.m.

  • No consumption of liquor permitted between 12 a.m. to 9 a.m.

  • Require contact information for all seated patrons

  • Limit of 6 people may be seated together

  • Limit volume of music to be low enough that a normal conversation is possible

  • safety plan is required to be prepared and made available upon request

Retail

  • Fitting rooms must be limited to non-adjacent stalls

  • Line-ups and patrons congregating outside venues managed by venue; 2 metre distance and face covering required

  • Limit volume of music to be low enough that a normal conversation is possible

  • For malls, a safety plan is required to be prepared and made available upon request

Personal care services

  • Oxygen bars, steam rooms and saunas closed

  • Require contact information from all patrons

  • safety plan is required to be prepared and made available upon request

Casinos, bingo halls and gaming establishments

  • Maximum of 50 people

  • Table games are prohibited

  • Casinos, bingo halls and gaming establishments can operate in accordance with a plan approved by the Office of the Chief Medical Officer of Health

  • Liquor sold or served only between 9 a.m. to 11 p.m.

  • No consumption of liquor permitted between 12 a.m. to 9 a.m.

  • Require contact information from all patrons

  • safety plan is required to be prepared and made available upon request

Cinemas

  • Maximum of 50 people indoors or 100 outdoors

  • 50 people indoors per indoor auditorium if cinema operates in accordance with the approved plan from the Office of the Chief Medical Officer of Health (Guidance for Movie Theatres During COVID-19)

  • Face coverings except when eating or drinking only

  • Drive-in cinemas permitted to operate, subject to restrictions

  • Liquor sold or served only between 9 a.m. to 11 p.m.

  • No consumption of liquor permitted between 12 a.m. to 9 a.m.

  • Require contact information from all patrons

  • safety plan is required to be prepared and made available upon request

Performing arts facilities

  • Maximum of 50 spectators indoors and 100 spectators outdoors

  • Singers and players of wind or brass instruments must be separated from spectators by plexiglass or some other impermeable barrier

  • Rehearsal or performing a recorded or broadcasted event permitted

  • Performers and employees must maintain 2 metre physical distance except for purposes of the performance

  • Drive-in performances permitted

  • Liquor sold or served only between 9 a.m. to 11 p.m.

  • No consumption of liquor permitted between 12 a.m. to 9 a.m.

  • Require contact information from all patrons

  • safety plan is required to be prepared and made available upon request

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WE MAY BE MOVING TO YELLOW - HERE'S WHAT YELLOW MEANS AND LOOKS LIKE FOR US IN THE CITY OF KAWARTHA LAKES

Kawartha Lakes may soon be moving to the Yellow zone.

Here’s what Yellow looks like and means:

Organized public events, social gatherings and religious services, rites and ceremonies

  • Limits for functions, parties, dinners, gatherings, barbeques or wedding receptions held in private residences, backyards, or parks:

    • 10 people indoors

    • 25 people outdoors

  • Limits for organized public events and gatherings in staffed businesses and facilities:

    • 50 people indoors

    • 100 people outdoors

  • Limits for religious services rites or ceremonies, including wedding services and funeral services (apply regardless of the venue where held):

    • 30% capacity of the room indoors

    • 100 people outdoors

Restaurants, bars and other food and drink establishments

  • Require patrons to be seated; 2 metre minimum or impermeable barrier required between tables

  • Limit of 6 people may be seated together

  • Dancing, singing and performing music is permitted, with restrictions

  • Karaoke permitted, with restrictions (including no private rooms)

  • Require patron contact information for all seated patrons

  • No buffet style service

  • Line-ups and patrons congregating outside venues managed by venue; 2 metres distance and face covering required

  • Face coverings required except when eating or drinking only

  • Personal protective equipment, including eye protection, required when a worker must come within 2 metres of another person who is not wearing a face covering

  • Night clubs only permitted to operate as restaurant or bar

  • Establishments must be closed from 12 a.m. to 5 a.m.

  • Liquor sold or served only between 9 a.m. to 11 p.m.

  • No consumption of liquor permitted between 12 a.m. to 9 a.m.

  • Limit volume of music to be low enough that a normal conversation is possible

  • safety plan is required to be prepared and made available upon request

Sports and recreational fitness facilities

  • Maintain 2 metre physical distancing, unless engaged in a sport

  • Capacity limits:

    • 10 people indoors per room or 25 people outdoors in classes

    • 50 people indoors in areas with weights or exercise equipment

  • Maximum of 50 spectators indoors or and 100 outdoors

  • Capacity limits apply on a per-room basis if operating in compliance with a plan approved by the Office of the Chief Medical Officer of Health (Guidance for Facilities for Sport and Recreational Fitness Activities During COVID-19)

  • Team or individual sports must be modified to avoid physical contact with an exemption for high performance athletes, including parasport athletes, and professional leagues; maximum 50 people per league

  • Limit volume of music to be low enough that a normal conversation is possible; measures to prevent shouting by both instructors and members of the public

  • Face coverings required except when exercising

  • Increase spacing between patrons to 3 metres for areas of a sport or recreational facility where there are weights or exercise equipment and in exercise and fitness classes

  • Require contact information for all members of the public that enter the facility

  • Require reservation for entry; one reservation for teams

  • safety plan is required to the prepared and made available upon request

Meeting and event spaces

  • Capacity limits:

    • 50 people indoors

    • 100 people outdoors

    • exception for court and government services

    • religious services, rites or ceremonies, including wedding services and funeral services:

      •  30% capacity of the room indoors

      • 100 people outdoors

  • Booking multiple rooms for the same event not permitted

  • Maximum of 50 people per room indoors, where physical distancing can be maintained if venue operates in accordance with the approved plan from the Office of the Chief Medical Officer of Health (Guidance for Meeting and Event Facilities During COVID-19)

  • Establishments must be closed from 12 a.m. to 5 a.m.

  • Liquor sold or served only between 9 a.m. to 11 p.m.

  • No consumption of liquor permitted between 12 a.m. to 9 a.m.

  • Require contact information for all seated patrons

  • Limit of 6 people may be seated together

  • Limit volume of music to be low enough that a normal conversation is possible

  • safety plan is required to be prepared and made available upon request

Retail

  • Fitting rooms must be limited to non-adjacent stalls

  • Line-ups and patrons congregating outside venues managed by venue; 2 metre distance and face covering required

  • Limit volume of music to be low enough that a normal conversation is possible

  • For malls, a safety plan is required to be prepared and made available upon request

Personal care services

  • Oxygen bars, steam rooms and saunas closed

  • Require contact information from all patrons

  • safety plan is required to be prepared and made available upon request

Casinos, bingo halls and gaming establishments

  • Maximum of 50 people

  • Table games are prohibited

  • Casinos, bingo halls and gaming establishments can operate in accordance with a plan approved by the Office of the Chief Medical Officer of Health

  • Liquor sold or served only between 9 a.m. to 11 p.m.

  • No consumption of liquor permitted between 12 a.m. to 9 a.m.

  • Require contact information from all patrons

  • safety plan is required to be prepared and made available upon request

Cinemas

  • Maximum of 50 people indoors or 100 outdoors

  • 50 people indoors per indoor auditorium if cinema operates in accordance with the approved plan from the Office of the Chief Medical Officer of Health (Guidance for Movie Theatres During COVID-19)

  • Face coverings except when eating or drinking only

  • Drive-in cinemas permitted to operate, subject to restrictions

  • Liquor sold or served only between 9 a.m. to 11 p.m.

  • No consumption of liquor permitted between 12 a.m. to 9 a.m.

  • Require contact information from all patrons

  • safety plan is required to be prepared and made available upon request

Performing arts facilities

  • Maximum of 50 spectators indoors and 100 spectators outdoors

  • Singers and players of wind or brass instruments must be separated from spectators by plexiglass or some other impermeable barrier

  • Rehearsal or performing a recorded or broadcasted event permitted

  • Performers and employees must maintain 2 metre physical distance except for purposes of the performance

  • Drive-in performances permitted

  • Liquor sold or served only between 9 a.m. to 11 p.m.

  • No consumption of liquor permitted between 12 a.m. to 9 a.m.

  • Require contact information from all patrons

  • safety plan is required to be prepared and made available upon request

 

 

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Clearing Snow Or Roof Top Working Without Training or Fall Restraint? Face criminal liability and big fines. Don't be this employer......

Working high without proper training or fall restraints? 

You can face both criminal liability and significant criminal fines, particularly the employer:  

Convicted: North West Lumber Co. Ltd. (NWL), operator of a Home Hardware Building Centre at 3299 Errington Avenue in Chelmsford (City of Greater Sudbury).

Location: The Home Hardware Building Centre in Chelmsford.

Description of Offence: A worker who was removing snow from the roof of a shed fell through a skylight. The worker was not using safety equipment as required by law.

Date of Offence: February 27, 2019.

Date of Conviction: December 1, 2020.

Penalty Imposed:

  • Following a guilty plea, North West Lumber Co. Ltd. was fined $55,000 in provincial offences court in Sudbury by Justice of the Peace Kathleen M. Bryant; Crown Counsel Wes Wilson.

  • The court also imposed a 25-per-cent victim fine surcharge as required by the Provincial Offences Act. The surcharge is credited to a special provincial government fund to assist victims of crime.

Background:

  • In the yard of the workplace was a shed in which lumber and other building supplies were stored.

  • In the winter of 2018-19 there was a large accumulation of snow on this building.

  • In December/January, structural deformation of a horizontal support beam on the west side of the shed was observed. A third-party contractor was employed to remove the snow load with the assistance of NWL employees.

  • A few weeks later, further bowing and cracking of another structural support beam on the east side was observed.

  • On February 27, 2019 a yard supervisor assembled two employees of NWL for the purpose of removing the accumulated snow load to prevent further structural damage to the building. The third-party contractor was not engaged to perform work on this occasion.

  • That morning the three employees held a brief meeting to discuss the snow clearing work.  One of the topics was the presence of skylights on the shed roof. These were sheets of corrugated plastic, each 2 feet wide and 7 feet long, mounted flush to the shingled roof surface.

  • One of the skylights was at a location near the snow to be cleared. No identification markers were placed to demarcate the skylight, which was more than 17 feet above the floor of the shed.

  • All three workers attended on the roof of the shed and began pushing snow off the sloped roof, which was more than 11 feet above the ground at the edge. None of the three were wearing any type of fall protection equipment and no guardrails were in place at the roof edge or around the skylights. There had been no discussion of fall protection at the morning meeting and no fall protection equipment was provided to the workers by NWL.

  • After lunch one of the workers returned to the roof of the shed and continued clearing snow.  While doing so the worker stepped on the skylight, broke through and fell to the ground below, suffering injuries.

  • The supervisor re-attended on the shed roof to finish clearing the snow and to measure the skylight opening and install a temporary cover. The supervisor was not wearing fall protection.

  • The injured worker did not have training in working at heights.

  • The company was convicted of failing as an employer to ensure the measures and procedures prescribed by section 85(a) of Regulation 851 (the Regulation for Industrial Establishments) were carried out in a workplace, contrary to section 25(1)(c) of the Occupational Health and Safety Act.

  • The regulation requires workers to use a safety belt or harness and lifeline when exposed to the hazard of falling more than 3 metres (about 10 feet).

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

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

  • Employment Insurance.

  • Canada Recovery Benefit.

  • Canada Recovery Sickness Benefit.

  • Canada Recovery Caregiving Benefit.

Employment Insurance (EI)

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

Canada Recovery Benefit

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

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

  • You must not be eligible for EI benefits.

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

  • You must be present in Canada.

  • You must be at least 15 years old.

  • You must have a valid social insurance number.

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

    • employment income on a gross basis;

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

    • maternity and parental benefits from EI.

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

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

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

Canada Recovery Sickness Benefit (CRSB)

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

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

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

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

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

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

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

  • You must be present in Canada.

  • You must be at least 15 years old.

  • You must have a valid social insurance number.

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

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

Canada Recovery Caregiving Benefit (CRCB)

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

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

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

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

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

    • the person under your care is:

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

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

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

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

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

  • You must be present in Canada.

  • You must be at least 15 years old.

  • You must have a valid social insurance number.

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

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

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

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

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

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

However, employers are NOT protected from claims from employees.

The legislation reads:

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

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

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

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

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

In other words:

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

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

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

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

BUT……….

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

  • a worker

  • a worker’s survivor

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

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

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

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

What Does This Mean?

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

What do businesses do?

  • Always act in good faith

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

  • Limit exposure as much as possible in the workplace

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

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

 

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

 

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

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

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

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

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

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

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

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

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

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

Ontario's Main Street Relief Grant: PPE support

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

Eligibility

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

  • retail

  • accommodation and food services

  • repair and maintenance

  • personal and laundry services

What you’ll get

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

What you’ll need to apply

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

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

  • thermometers, temperature monitors or cameras

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

  • signs to guide or inform customers and employees

Property tax and energy bill rebates

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

Eligibility

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

Types of businesses that are eligible for support include:

  • restaurants and bars

  • gyms, facilities for indoor sports and recreational fitness activities

  • performing arts and cinemas

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

  • community centres, multi-purpose facilities, and museums

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

  • racing venues

  • meeting or event space

  • in-person teaching and instruction

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

  • retail required to close for in-person shopping

  • shopping malls

  • personal services

  • driving instruction

  • tour and guide services

  • photography services

  • campgrounds

Businesses will not be eligible if they are:

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

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

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

What you’ll get

Eligible businesses could get rebates for:

  • municipal and education property taxes

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

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

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

What you’ll need to apply

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

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

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

How to apply

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

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

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

 

Canada Emergency Rent Subsidy (CERS)

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

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

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

Eligibility criteria

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

1.Meet at least one of these conditions:

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

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

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

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

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

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

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

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

  • individuals (other than a trust)

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

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

    • non-profit organizations

    • agricultural organizations

    • boards of trade

    • chambers of commerce

    • non-profit corporations for scientific research and experimental development

    • labour organizations or societies

    • benevolent or fraternal benefit societies or orders

  • registered charities

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

  • the following prescribed organizations:

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

    • partnerships consisting of eligible employers and certain Indigenous governments

    • registered Canadian amateur athletic associations

    • registered journalism organizations

    • private schools or private colleges, and

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

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

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

This may affect your calculations for the subsidy.

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

This may affect your calculations for the subsidy.

3.Experienced a drop in revenue

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

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

Calculate your revenue drop online

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

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

4.Have eligible expenses

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

How to apply:

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

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

Qualifying property

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

  • owns or rents, and

  • uses in the course of your ordinary business activities

Properties that do not qualify, include:

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

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

Eligible expenses

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

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

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

    • applies to the base subsidy only

    • there is no maximum for the top-up subsidy

Eligibility criteria for expenses

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

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

  • The expense must be in respect of the claim period

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

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

You cannot claim expenses that were paid or payable:

  • to non-arm’s-length entities

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

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

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

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

    • base rent

    • regular payments for customary operating expenses

    • property and similar taxes

    • regular payments to the lessor for customary ancillary services

You cannot include amounts paid or payable for:

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

  • damages

  • interest or penalties on unpaid amounts

  • other special amounts

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

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

  • Property and similar taxes

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

  • Property insurance

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

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

Expenses that are not eligible include:

  • payments between non-arm’s-length entities

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

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

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

Convicted: 1507418 Ontario Inc.

Location: Toronto

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

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

Date of Conviction: November 13, 2020

Penalty Imposed:

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

Background:

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

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

However, very recently the Green status was changed.

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

Now, however, that has changed.

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

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

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

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

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

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

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

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

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

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

Said the Court:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Case:

Yenovkian v. Gulian, 2019 ONSC 7279

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Of note, the Court explained:  

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

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

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

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

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

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

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

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

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

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

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

The Case:

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

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

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

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

It means this:

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

  • 10 people indoors

  • 25 people outdoors

• Gathering limit for organized public events and social gatherings:

  • 50 people indoors

  • 100 people outdoors

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

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

  • 100 people, subject to physical distancing, outdoors

• Requirement for workplace screening

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

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

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

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

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

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

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

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

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

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

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

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

Take some time to get prepared.

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

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

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

For example, did you know that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Vulnerability of the other person is often a key consideration.

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

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

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

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

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

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

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

The Dispute:

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

The Outcome:

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

Here is the actual decision:

ENDORSEMENT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Court noted:

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

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

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

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

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

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

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

  • the employee was 37;

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

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

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

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

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

Bottom Line for Employers

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

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

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

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UGH...SNOW. YOUR LEGAL DUTY AS A HOMEOWNER (SIDEWALKS, STEPS AND DRIVEWAYS)

Let it snow, let is snow, let is snow......What am I obliged to do, as a homeowner, for snow and ice?

In Ontario, homeowners have a a duty to keep their property reasonably safe for others.

Section 3 of the Occupiers’ Liability Act (Ontario) reads:

3. (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

Idem

(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.”

This means that you, as a homeowner, need to keep your driveway, steps and the like reasonably clear of snow and ice for others who visit you, including delivery people, guests and even strangers, such as canvassers and people trying to inspect your hot water heater to sell you an allegedly better program.  

If you do not, you may face liability for failing to keep your property reasonably safe for others.

While home insurance is designed to offer some protection to you, it is important that you act reasonably to keep your property reasonably clear of ice and snow – you should not do nothing and rely on a home insurance policy to protect you if you are sued. Claims will also cause your premiums to increase, too, if your home insurer does not decide to drop you as a insured client altogether if you make a claim and you failed to take reasonable steps to keep your property reasonably clear of ice and snow.

There is also a question in Ontario about whether a homeowner must also take reasonable steps to keep the municipal sidewalk clear of dangerous snow or ice. The best practice is to keep it monitored and, if the municipality is not properly clearing it regularly and keeping it in good condition, taking steps should be considered, such as shoveling, using sand or salt and calling the municipality to attend to take proper steps.

You should take these steps as soon as you can after a snowfall or ice build up. If you are too busy or away, you should consider hiring a snow removal contractor to help you or ask a neighbour to do it for you temporarily.

Avoid a lawsuit, be winter safe at your home.   

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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SUED FOR DEFAMATION? CONSIDER "I'M SORRY" TO REDUCE YOUR POTENTIAL LIABILITY - IT WORKS.

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

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

This is uniquely an Ontario-only legal initiative.

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

Not anymore.

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

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

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

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

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

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

Apology Act, 2009

S.O. 2009, CHAPTER 3

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

No Amendments.

Definition

1. In this Act,

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

Effect of apology on liability

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

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

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

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

Exception

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

Evidence of apology not admissible

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

Exception

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

Criminal or provincial offence proceeding or conviction

3. Nothing in this Act affects,

(a) the admissibility of any evidence in,

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

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

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

Acknowledgment, Limitations Act, 2002

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

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

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

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

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

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NEW LAW IN ONTARIO LIMITING LAWSUITS FOR CONTRACTING COVID IN BUSINESSES AND BY WORKERS

As anticipated, Bill 218, Supporting Ontario's Recovery and Municipal Elections Act, 2020 has been tabled by the Ontario government and, if passed, will prevent lawsuits relating to COVID-19 infections or exposure from being brought against businesses and workers that make an honest effort to follow public health guidelines and laws aimed at preventing exposure to COVID-19.

The new legislation provides that no cause of action arises against any person as a direct or indirect result of an individual being or potentially being infected with or exposed to COVID-19 on or after March 17, 2020, as a direct or indirect result of an act or omission of the person if:

  1. at the relevant time, the person acted or made a good faith effort to act in accordance with, (i) public health guidance relating to COVID-19 that applied to the person, and (ii) any federal, provincial or municipal law relating to COVID-19 that applied to the person; and

  2. the act or omission of the person does not constitute gross negligence.

What constitutes “public health guidance” is defined broadly and includes advice and recommendations from a long list of individuals and government bodies, including the Chief Medical Officer of Health, public health officials in the Government of Canada, ministers or ministries of the Government of Ontario or Canada and its officers or employees, and municipalities and their officers or employees, among others [subsection 1(1)]. The protection from liability applies “regardless of any conflict or inconsistency in the public health guidance or laws applicable to the person” [subsection 2(2)].

A “good faith effort” is defined to “include an honest effort, whether or not that effort is reasonable” [subsection 1(1)].

Exceptions

However, the proposed legislation provides for a number of important exceptions to the liability protection.

For example, it excludes lawsuits against those whose actions constitute gross negligence.

It also allows for lawsuits stemming from acts or omissions of a person that occurred while a law required the person’s operations to close (in whole or in part), and that relate to an aspect of the person’s operations that was required to close under the law [section 3].

Lastly, it provides broad exceptions relating to employment and the performance of work [subsection 4(2)], including causes of actions by workers in respect of an exposure to or infection with COVID-19 that occurred in the course of or as a result of employment, regardless of whether or not the employer has workers’ compensation coverage.

The legislation also confirms that workers’ compensation legislation (to the extent that an employer participates in the provincial scheme) may still cover COVID-19 exposures and infections.
 

Retroactive Effect

The new legislation, if passed, is intended to have retrospective effect.

No proceedings may be brought or maintained that relate to anything referred to in subsection 2(1), regardless of whether the cause of action arose before, on or after the day the legislation comes into force.

Any such proceedings that are commenced before the legislation comes into force are deemed to have been dismissed, without costs, on the day the legislation comes into force.
 

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UPCOMING DEADLINES FOR CKL BUSINESSES - ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT - WHAT YOU NEED TO KNOW

Under Ontario's Accessibility for Ontarians With Disabilities Act ("AODA"), there are some upcoming deadlines CKL businesses may need to be aware of: 

Accessible Websites Required for 2021

Particularly timely with so many of us working, shopping and generally living online is the obligation to make websites accessible. That is set to be in force on the first day of 2021 for private and non-profit organizations with fifty or more employees, as well as all public-sector organizations.

Specifically, this requirement means that all public websites and web content posted after January 1, 2012 must meet WCAG 2.0 Level AA other than criteria 1.2.4 (live captions) and 1.2.5 (pre-recorded audio descriptions).

For guidance on how to make your website and web content accessible so as be compliant, check out this guide.

Compliance Reports due December 31, 2020 June 30, 2021

The deadline to file the 2020 Accessibility Compliance Report, which was the end of this year, has been deferred to the end of June 2021.

The Accessibility Compliance Report is mandatory and confirms that an organization has met its accessibility requirements under the AODA. For more guidance on how to complete it, check out this guide provided by the government. You can download the form here.

The report is required for businesses or non-profit organizations with 20 or more employees, as well as designated public-sector organizations. Ignoring this requirement is risky, as failure to file the report on time can result in financial penalties.

Note that if your circumstances change, you are expected to update your profile. According to the guidelines, if you have a change in:

  • Address

  • Primary contact information

  • Number of employees

  • Status (for example is no longer in business or has fewer than 20 employees)

You can use this form to update your organization’s profile.  

 

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WHAT IS A "PEACE BOND" AND HOW DO I GET ONE AGAINST SOMEONE ELSE? PEACE BONDS - A TO Z.

What is a peace bond?

A peace bond is a court order that is a signed promise, in writing, to keep the peace and be of good behaviour. It can include conditions. For example, the other party may promise not to contact you. 

Anyone can apply for a peace bond under section 810 of the Criminal Code.

These peace bonds are sometimes called "section 810 peace bonds" or "810 recognizances".

To apply for a peace bond, you must go to criminal court and explain why you need a peace bond. For example, you should tell the court why you are afraid that your partner might hurt you, your children, your property, or your pets.

A section 810 peace bond can last for up to one year. If you need to be protected after your peace bond ends, you have to apply for another one.

Applying for a peace bond

To get a peace bond, you need to go to criminal court. Usually, you need to ask a justice of the peace (JP) for a peace bond. To find a JP, call your local courthouse or go to www.ontariocourts.ca/ocj/how-do-i/find-a-justice-of-the-peace.

You need to tell the JP why you think you need a peace bond. If the JP thinks there is enough evidence for your application to go to court, they will issue a summons to your partner to appear in court on a specific date.

Summons: a document that orders the other party to go to court on a specific date.

If the other party does not agree to a peace bond, there might be many delays before the court decides whether to give you a peace bond at a hearing.

The court looks at the evidence and decides whether or not they should order a peace bond and what conditions it should include.

You can have a lawyer represent you in court. Usually, you have to come to court to tell your side of the story. But you do not have to come if the other party agrees before the court date to sign a peace bond.

Important: Sometimes a JP or criminal court judge will suggest that both people sign a peace bond. This is called a "mutual" peace bond. Never agree to sign a mutual peace bond without getting legal advice first. It would mean that you must follow the same conditions as the other party. An cagey other party might try to get you to break a condition and then call the police to report you.

Conditions in a peace bond

Even though it is a court order, the peace bond will not give the other party a criminal record. But if the other party breaks any of the bond's conditions, call the police. The other party might be charged with breaching a peace bond, which is a criminal offence. If he or she is found guilty, he or she can be sentenced to time in jail.

Peace bonds are entered on the police information computer system. The police can arrest anyone who breaks any of the conditions.

After you get a peace bond

Keep a certified copy of the peace bond with you at all times. The police need to see it before they can do anything if the other party does not follow the peace bond.

You might also want to give a copy to others. 

Note, however, that if the other party opposes your request for a peace bond, there could be a hearing, which may mean time and expense for everyone involved.   

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WHAT DOES "PROBATE" MEAN? DO I REALLY NEED A LAWYER TO "PROBATE" A WILL?

So, you have been named as an “estate trustee” (i.e., executor) in a last will and testament – what now?

This is typically an onerous role, so it is important you understand your duties and potential liabilities if you accept this role, which you must decide at the outset.

In Ontario, “probate” is an antiquated legal term, but it commonly used in estate-related matters to this day.

Probate is the court processes that proves the validity of a will and provides the power and control to the estate trustee (also known as a Personal Representative) to act on the instructions left in the will by the deceased. 

Upon a successful granting of probate, the will is confirmed by the courts as the last valid will of the deceased.  

Importantly the process requires notice to those who are involved in the estate (directly through being named in the will) or should be involved in the will (through statute). For instance, if the deceased did not make any provisions for his or her spouse in the will, the spouse has to be notified of the probate. 

What does the probate process look like?

Speaking generally, probate looks like:

  1. Some investigation into the estate (What did the deceased own? Are there outstanding debts?);

  2.  A sizeable amount of paperwork (known as application forms, available online or through your lawyer);

  3. Swearing or affirming that paperwork in front of a Commissioner for Oaths; and

  4. Electronically filing your paperwork with the Court, after properly serving the paperwork on everyone who is required by statute.   

The court clerks then review the forms. If they require any changes or have any concerns they will contact you for revisions. If the documents are in order, the forms will be provided to a Superior Court Justice for review and, if all is in order, approval. 

You will then be notified by the clerks that you have received a Certificate of Appointment of Estate Trustee With a Will (sometimes referred to as a “grant of probate”). 

Handling probate without a lawyer

Do you need a lawyer?

In straightforward situations it can be relatively easy. If the will is straightforward and the estate is straightforward an estate trustee may not require the professional assistance of a lawyer. 

If this is not the case an estate trustee may want the assistance of a lawyer to help navigate through the application and filing processes.  

Sometimes it can be hard to know if a will or an estate is straightforward and an estate trustee may not know whether they even need a lawyer. 

Things to consider

Questions to consider include:

  1. Does the will meet the formal requirements of a valid will?

  2. Is it clear what the testator’s estate is comprised of?

  3. Is the will clear as to who should receive the estate under the will?

  4. Did the testator exclude someone who is required by statute to receive notice of probate? 

  5. Should the executor take additional steps to locate creditors or debts of the deceased?

There are many other issues that may make a probate process contentious. 

Contentious probate

A contentious probate means there is a dispute relating to the administration of the estate. 

This could be:

  • a dispute over the validity and/or interpretation of a will, 

  • a dispute over the circumstances of the execution of the will (the capacity of the testator for instance), 

  • a dispute between the estate trustee and a beneficiary, or 

  • a dispute of the worth of the estate… to name a few. 

Not all of these disputes can be avoided, but an executor who is aware of these issues at the outset is better able to take informed steps in the process and ideally better serve the estate.

Credit:  Eleanor Carlson, Carbert Waite LLP, published via Lexology.com on Oct. 15, 2020

 

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HALLOWE'EN IN THE CKL - ON OR OFF? SAFETY TIPS FOR TRICK-OR-TREATING AND SPOOKY GATHERINGS

The Health Unit recommends rethinking the usual door-to-door trick-or-treating this year due to COVID-19 concerns.

They encourage creative ways to celebrate at home.

TRICK-OR-TREATING:

However, if you do decide to do a little trick-or-treating this year………….

  • Individually wrap goodie bags and leave them out on a table or chair at the end of your walk or driveway.

  • Don't go trick-or-treating if feeling ill, even if symptoms are minor

  • Choose costumes that allow a non-medical mask to be worn underneath - make sure you can see and breathe comfortably

  • Minimize contact with others: trick-or-treat with your family or cohort, remain within your community, and stay 2 metres apart

  • Avoid touching doorbells or railings: call "trick or treat" from 2 metres away, knock instead of using doorbells, use hand sanitizer after touching surfaces

  • Wash hands and disinfect packages before eating candy

HANDING OUT CANDY:

  • Don't hand out candy if feeling ill or isolating

  • Wear a non-medical mask that fully covers your nose and mouth

  • Ask trick-or-treaters to knock or call out instead of ringing the doorbell

  • Use tongs to hand out pre-packaged candy to avoid handling treats

Find creative ways to maintain distance from trick-or-treaters:

  • Hand out treats from your driveway or front lawn, if weather permits

  • Set up a table or desk to help keep yourself distanced

  • Make candy bags and space them out on a table or blanket; don't leave out self-serve bowls of bulk candy

  • Build a candy slide, candy catapult or other fun, non-touch delivery methods

HALLOWE’EN GET TOGETHERS:

  • Stay home if feeling ill, even if symptoms are mild

  • Spend time with people you know - the smaller the group the better

  • Choose games and activities that don't use shared items and allows people to stay 2 metres apart

  • Don't share drinks, food, cigarettes, vapes or cannabis

  • Host your party outdoors, if weather permits. If you must stay indoors:

  • reduce your gathering size (max is ten people indoors; 25 outdoors)

  • choose a location that allows for physical distancing between people from separate families and cohorts

  • provide hand sanitizer

  • Wash or sanitize your hands often

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HOW MUCH DO YOU KNOW ABOUT YOUR TURKEY? FUN TURKEY FACTS.

Gobble, gobble. How much do you really know about your festive bird this year? 

Did you know? 

  • As far back as 1000 A.D., Native American Indians raised turkeys for food. Aztec Indians in Mexico were raising them as early as 200 B.C.

  • Turkeys originally existed in the eastern US. and Mexico.

  • Turkeys are actually a type of pheasant.

  • The heaviest turkey weighed in at 86 pounds. Please pass the stuffing!

  • Turkeys have excellent and a wide range of vision, about 270 degrees.

  • Mature turkeys have about 3,500 feathers. I wonder who took the time to count them?

  • The turkey industry grosses over $1billion a year.

  • The Average American consumes over 15 pounds of Turkey per year.

  • Americans will cook over 45 million turkeys on Thanksgiving Day.

  • 235 million turkeys were raised in 2014. The record is 302.7 million in 1996.

  • Over 770 million pounds of cranberries are consumed on Thanksgiving.

  • Turkey, like poultry, is lower in cholesterol than beef an many other meats. The dark meat (thigh, legs,) contains more fat and cholesterol than white meat. So, that's why dark meat tastes so good!

  • Male Turkeys are called "Toms" or "Gobblers", female turkeys are called "Hens" and baby turkeys are called "poults".

  • How's that taste? Old Toms are better tasting then young toms. Conversely, young hens taste better than old hens.

  • In 2016, there was over 100,000 phone calls to the Butterball Turkey Talk Line. The average call time was 3 munites, and 8 seconds.

  • Only Tom turkeys "gobble".

  • That long, loose skin that hangs down from a turkey's neck is called a "wattle".

  • Turkey eggs are tan in color and speckled with brown. They are about twice as large as chicken eggs.

  • Wild turkeys can fly 55 miles per hour, and run 25 miles per hour.

  • In 1947, the first Presidential pardon was ceremoniously given to a turkey.

  • The  "Turkey Trot" was named after how turkeys walk.... in short, jerky steps.

  • Sleepy after the big meal? Turkey contains an amino acid called "Tryptophan". Tryptophan sets off a chemical chain reaction that calms you down and makes you sleepy.

  • At the first Thanksgiving feast in 1621, the pilgrims did not serve pumpkin pie, Rather, they made stewed pumpkin.

  • The Native American name for turkey is "Firkee"

  • You can tell the sex of a turkey from their poop. Males form a spiral on the ground, while females leave "J" shaped poop. I'm sure you wanted to know this.

  • Mature turkeys have over 3,500 feathers.

  • Native Americans considered turkeys to be weak. As a result, they would only eat them when food was scarce, or in times of famine.

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GOBBLE, GOBBLE - REMINDER - GATHERING RULES (THANKSGIVING) STIFF FINES TO BOTH VISITORS AND HOSTS - POLICE HAVE NOW BEEN DIRECTED TO ENFORCE, NOT EDUCATE.

Unmonitored and private social gatherings include functions, parties, dinners, gatherings, BBQs or wedding receptions held in private residences, backyards, parks and other recreational areas.

The limit on the number of people allowed to attend an unmonitored private social gathering across the province is:

  • 10 people at an indoor event or gathering (previous limit of 50); or

  • 25 people at an outdoor event or gathering (previous limit of 100).

Indoor and outdoor events and gatherings cannot be merged together. Gatherings of 35 (25 outdoors and 10 indoors) are not permitted.

These limits do not apply to events or gatherings held in staffed businesses and facilities, such as bars, restaurants, cinemas, convention centres, banquet halls, gyms, places of worship, recreational sporting or performing art events.

Existing rules, including public health and workplace safety measures for these businesses and facilities, continue to be in effect.

The new amendments to the Reopening Ontario (A Flexible Response to COVID-19) Act establish:

  • a new offence regarding hosting or organizing a gathering in residential premises or other prescribed premises that exceeds limits under an order.

  • A minimum fine of $10,000 for organizers of these gatherings.

  • Authority for the Lieutenant Governor in Council to prescribe additional types of premises for the purpose of the new offence.

  • Authority for a police officer, special constable or First Nations constable to order the temporary closure of a premises where there are reasonable grounds to believe that any gathering exceeding the number of people allowed is taking place and require individuals to leave the premises.

It remains important for everyone to continue following public health advice. This includes:

  • staying home when ill, or keeping your child home from school when ill, even with mild symptoms;

  • practising physical distancing with those outside your household or social circle, or at gatherings;

  • wearing a face covering when physical distancing is a challenge or where it is mandatory to do so;

  • washing your hands frequently and thoroughly; and

  • adhering to gathering limits and rules.

For additional protection, the Ontario government is encouraging everyone to download the new COVID Alert app on their smart phone from the Apple and Google Play app stores.

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MASKING 101 IN THE CKL - DO YOU HAVE TO PROVE YOU ARE EXEMPTED? WHAT ABOUT IN THE CAR WHILE WORKING? MORE TO KNOW.........

Ontario government amended Regulation 364/20 to establish additional COVID-19-related requirements for Ontario businesses and other organizations.

The Regulation now requires businesses and other organizations to ensure that any person - including but not limited to employees - wears a mask or face covering whenever the person is in an indoor area or in a vehicle that is operating as part of the business or organization.

The Regulation sets out a number of specific exceptions to the mask requirement. Most notably for employers, individuals are not required to wear a mask if they:

  • Have a medical condition that inhibits their ability to wear a mask or face covering;

  • Are unable to put on or remove their mask or face covering without the assistance of another person;

  • Are being accommodated under the Accessibility for Ontarians with Disabilities Act;

  • Are being reasonably accommodated under the Human Rights Code;

  • Perform work for the business or organization, are in an area that is not accessible to members of the public, and are able to maintain a physical distance of at least two metres from every other person while in the indoor area.

The amended Regulation expressly states that a person is not required to provide evidence to demonstrate that they fall within one of the exceptions.

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CERB IS OVER - THE NEW EI EXPLAINED - DO i NEED TO RE-APPLY? THE NEW BENEFITS AVAILABLE TO REPLACE CERB IN THE CKL. WHAT YOU NEED TO KNOW.........

Although the Canada Emergency Response Benefit (“CERB”) ended on October 3, 2020, many Canadians still find themselves in need of financial assistance due to the impact of COVID-19.

As a result, changes have been implemented to make Employment Insurance (“EI”) benefits more accessible. These changes are anticipated to be in effect for one year starting September 27, 2020.

Under the revised EI program, Canadians who were on CERB will receive $500 per week, the same amount they had received on CERB.

Canadians can also work while on EI and earn up to a maximum of $38,000 annually.

If a Canadian received CERB through Service Canada, in order to receive EI, most will not have to apply. However in order to continue receiving benefits, Canadians are required to continue completing reports to demonstrate their eligibility.

If a Canadian does not qualify for EI, they will be notified by mail. Those that will need to reapply include those who have a SIN that starts with a 9, those who are self-employed, and those who declared that they returned to full-time work on their CERB report.

If a Canadian received CERB through the Canada Revenue Agency (the “CRA”),  they will need to apply for EI.

Canadians may be eligible for EI If the following criteria are met:

  • did not leave their employment voluntarily;

  • for regular EI benefits, they must be ready, willing, and capable to work each day;

  • for EI maternity, parental, sickness, compassionate care, and family caregiver benefits the individual must be unable to work due to providing care for someone else; and

  • employed for at least 120 insurable hours in the past year (however, if an individual received CERB, the period to accumulate insured hours will be increased).

On October 2, 2020, the COVID-19 Response Measures Act, SC 2020, c 12 was passed, creating three new recovery benefits in an attempt to fill gaps in the EI program. It had been unclear whether this bill would be passed and Canadians would receive the three new recovery benefits. These benefits are now retroactive to September 27, 2020 and will be available for one year, ending September 25, 2021. The three new benefits are as follows:

  • The Canada Recovery Sickness Benefit will provide $500 weekly for up to two weeks to workers who are unable to work at least half of the week for multiple reasons related to COVID-19, including contracting COVID-19 and self-isolating due to COVID-19.

  • The Canada Recovery Benefit provides Canadians $500 per week for up to 26 weeks if they have stopped working, are not eligible for EI, or have had their income reduced by at least 50% as a result of COVID-19.

  • The Canada Recovery Caregiving Benefit provides $500 weekly for up to 26 weeks for Canadians who are unable to work for at least 50% of the week because they must care for an individual whose school or care facility is closed due to COVID-19, the individual they care for is sick or required to quarantine, or the individual they care for is particularly susceptible to poor outcomes from COVID-19. Only one household member may collect this benefit.

It is clear that COVID-19 has had a lasting impact on the finances and employment of many Canadians. It is hoped that the transition from EI to CERB will be seamless and provide Canadians with the financial assistance they require.  At the same time, it is hoped that the benefits will not hinder the transition back to work for employees who have been given the option of returning to their workplace. 

Credit: 

Deanna Froese, Harper Grey LLP, published on Lexology.com on Oct. 7, 2020 

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YOUR A-Z FOR MASKING - DO I WEAR IT AT WORK? WHAT ABOUT HEALTHCARE WORKERS? WHEN CAN I TAKE IT OFF? WEAR IT IN EVERY PUBLIC PLACE? DO'S AND DON'TS, TOO!

As the number of new cases continues to rise, the province is taking more action to prevent and stop the spread of the virus and avoid future lockdowns.

These new restrictions were adopted through the amended order O. Reg 364/20 (Rules for Areas in Stage 3 under the Reopening Ontario [A Flexible Response to COVID-19] Act, 2020).

They include mandating the use of face coverings in all public indoor settings across the province, such as businesses, facilities and workplaces, with limited exemptions, including corrections and developmental services.

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

When you do go out, you must use a face covering (non-medical mask, such as a cloth mask) in public indoor spaces and whenever physical distancing is a challenge.

This includes:

  • public spaces (for example, inside stores, event spaces, entertainment facilities and common areas in hotels)

  • workplaces, even those that are not open to the public

  • vehicles that operate as part of a business or organization, including taxis and rideshares

Face coverings will not stop you from getting COVID-19, but may help protect others.

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

When you don’t have to wear a face covering

There are some situations when you do not need to wear a face covering.

You do not need medical documentation to support any of the exceptions below.

Children

Children do not have to wear a face covering indoors if they are younger than two years old.

Health and accommodations

You do not need to wear a face covering if you:

  • have a medical condition that inhibits your ability to wear a face covering

  • are unable to put on or remove your face covering without help from someone else

  • are receiving accommodations according to the Accessibility for Ontarians with Disabilities Act, 2005 or the Human Rights Code

Correctional institutions

You do not need to wear a face covering if you are in a:

  • correctional institution

  • custody program for young persons in conflict with the law

  • detention program for young persons in conflict with the law

Workplaces

You do not need to wear a face covering when you are working in an area that allows you to maintain a distance of at least 2 metres from anyone else while you are indoors.

Residences and dwellings

You do not need to wear a face covering in:

  • university dorms, retirement homes, long-term care homes or other similar dwellings except when you are in a common area and can’t maintain 2 metres from others

  • residences for people with disabilities (any residences listed in the definition of“residential services and supports”in subsection 4 (2) of the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008)

Performing or rehearsing

You do not need to wear a face covering while you are performing or rehearsing for a:

  • film or television production

  • concert

  • artistic event

  • theatrical performance

Temporarily taking off your face covering

You can take off your face covering temporarily:

  • to receive services that require you to take it off (for example, at the dentist, when receiving some personal care services such as facials, or when you have to verify your identity)  

  • to engage in an athletic or fitness activity

  • to eat or drink

  • as necessary for health and safety purposes

Fit

Non-medical masks or face coverings should:

  • fit securely to the head with ties or ear loops

  • maintain their shape after washing and drying

  • be made of at least two layers of tightly woven material (such as cotton or linen)

  • be large enough to completely and comfortably cover the nose and mouth without gaping

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

  • minimize errands to a single trip where possible

  • 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)

How to properly use face coverings

When wearing 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 slightly wet or dirty.

Remove or dispose of face coverings

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.

Cleaning

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 slightly wet, dirty or crumpled.

For more information, please read the Public Health Ontario (PHO) fact sheet.

Summary dos and don’ts

Do:

  • wash your hands immediately before putting on and immediately after taking off a face covering or face mask

  • 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

  • change the face covering or face mask when it gets slightly wet or dirty

Do not:

  • share face coverings or face masks with others

  • place on children under the age of two years or on anyone unable to remove without assistance or who has trouble breathing

  • use plastic or other non-breathable materials as a face covering or face mask

Guidance for health care workers

Personal protective equipment (PPE) is a garment or device worn by health care workers to protect themselves from infection when they:

  • are in close contact with people who are infected

  • can’t maintain a safe physical distance

  • do not have access to a physical barrier

PPE includes:

  • surgical masks, also called procedural or medical masks, which prevent droplets and splashes from passing through the mask material  

  • respirators, such as the N95 respirator, which have a filter and seal around the nose and mouth to help prevent exposure to airborne particles

  • gowns

  • gloves

  • eye protection, such as goggles or face shields

The type of PPE you need depends on the type of health care work you do. Health care workers who provide direct care to patients with suspected or confirmed COVID‑19 need to:

  • follow droplet and contact precautions

  • use a surgical mask, isolation gown, gloves and eye protection

 

 

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CAN MY BOSS TELL ME WHEN I CAN TAKE MY VACATION? YES....

I just returned to work. Can my boss tell me when I can take my vacation this year? Yes. 

Because the COVID-19 pandemic has made travel impossible or risky to one’s health, employers may face employee requests to delay vacation time. In this Insight, we help employers in Ontario understand their rights and obligations when faced with such a request.

What is an Employee’s Vacation Entitlement?

Under the Employment Standards Act, 2000 (ESA)

Part XI of the ESA sets out the minimum requirements for an employee’s annual vacation:1

  • An employee whose period of employment is less than five years is entitled to two weeks of vacation time after the completion of each 12-month vacation entitlement year; and

  • An employee whose period of employment is five years or more is entitled to three weeks of vacation time after the completion of each 12-month vacation entitlement year.2

The “period of employment” is the period when the employee has been employed by the employer since the employee’s hire date. Inactive periods of employment (e.g., leaves or temporary lay-offs) do not affect the period of employment; both active and inactive periods of employment are included when determining an employee’s vacation entitlement.3

The ESA defines a “standard vacation entitlement year” as a recurring 12-month period beginning on the date of hire.4 An employer may establish an “alternative vacation entitlement year,” which is defined as a recurring 12-month period chosen by the employer and beginning on a date other than the first day of the employee’s employment.5 An employee is entitled to a pro-rated amount of vacation time for the period of employment (the "stub period") that precedes the first alternative vacation entitlement year.6

If an employee will not be taking vacation in complete weeks, the employer must base the number of vacation days to which the employee is entitled:

  • On the number of days in the employee’s regular work week; or

  • If the employee does not have a regular work week, on the average number of days the employee worked per week during the most recently completed vacation entitlement year.7

An employee must request permission, in writing, from their employer to take vacation time in days rather than weeks; if the employer agrees to this in writing, the employee may do so.8

Under an Employment Contract

The employer and employee may agree in an employment contract that the employee will be entitled to a vacation period greater than the employee’s statutory entitlement. If such an agreement is reached, the greater vacation period will prevail.9 Furthermore, vacation time can be taken prior to the expiry of the 12-month vacation entitlement year if the employer agrees, or the employee’s contract of employment clearly so provides.

Circumstances in Which an Employee May Forgo Vacation

If the Director of Employment Standards approves and an employee’s employer agrees, an employee may be allowed to forego taking vacation to which they are entitled under Part XI of the ESA.10

Determining the Timing of Vacation

The employer has the right and obligation to determine when an employee may take vacation for a vacation entitlement year, subject to the following rules:

  • The vacation must be completed no later than 10 months after the end of the vacation entitlement year for which it is given.

  • If the employee’s period of employment is less than five years, the vacation must be (a) a two-week period; or (b) two periods of one week each, unless the employee requests in writing that the vacation be taken in shorter periods and the employer agrees to that request.

  • If the employee’s period of employment is five years or more, the vacation must be (a) a three-week period; (b) a two-week period and a one-week period; or (c) three periods of one week each, unless the employee requests in writing that the vacation be taken in shorter periods and the employer agrees to that request.11

An employer may not schedule an employee’s vacation during the statutory notice of termination period, unless the employee, after having received the notice, agrees to the inclusion of the vacation time during the statutory notice period.12

Timing of Vacation if Employer Establishes Alternative Vacation Entitlement Year

If an employer establishes an alternative vacation entitlement year for an employee, the employer has the right and the obligation to determine when an employee may take the vacation time earned for the stub period.13 However, the vacation must be completed no later than 10 months after the start of the first alternative vacation entitlement year. Unless the employee requests in writing that the vacation be taken in shorter periods and the employer agrees to that request, if the vacation entitlement is equal to two or more days, the vacation must be taken in a period of consecutive days. However, if the vacation entitlement is equal to or more than five days, at least five vacation days must be taken in a period of consecutive days and the remaining vacation days may be taken in a separate period of consecutive days.14

Bottom Line for Employers

During the COVID-19 pandemic and otherwise, employers in Ontario have the right and obligation to determine when an employee may take vacation. Employers are not required to allow an employee to delay their vacation, but may allow an employee to do so. However, should an employer decide to allow an employee to delay their vacation, rules set out in the ESA apply. For a standard vacation entitlement year, the employer must ensure that the employee’s vacation is completed no later than 10 months after the end of the vacation entitlement year; for an alternative vacation entitlement year, the employer must ensure that the vacation is completed no later than 10 months after the start of the first alternative vacation entitlement year. In addition, the employer must not schedule the employee’s vacation during the statutory notice of termination period unless the employee, after having received the notice, agrees to the inclusion of the vacation time during the statutory notice period.

Credit

Littler LLP - Rhonda B. Levy and Barry Kuretzky, published on Lexology.com on October 6, 2020. 

 

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$#@&% COLLECTION AGENCY - CAN THEY DO THIS TO ME? WHAT ARE MY RIGHTS? YOUR ANSWERS.......

Can this *&$@*# collection agency do this? What are my rights?

In Ontario, collection agencies must be registered with the Government of Ontario and must follow the rules set out in Ontario’s Collection and Debt Settlement Services Act.

When a collection agency contacts you to collect money that you may owe or when you can’t pay a debt, they must follow those rules.

If you’re contacted:

Before a collection agency can contact you they need to send you a written notice through regular mail (email doesn’t count).

This notice must include:

  • the name of the person or business that says you owe them money (known as the creditor)

  • the amount of money that the creditor says you owe

  • the name of the collection agency and a statement that the creditor has asked them to collect the debt

After sending the notice, the agency must wait six days before they can contact you in person or by phone.

After their first conversation with you, an agency can’t contact you more than three times in a seven-day period without your consent.

“Contact” means the agents must actually speak with you, email you or leave you a voice mail. If you don’t answer the phone and the agents don’t leave a message, it doesn’t count as a contact. A letter sent by regular mail also does not count as a contact.

If the debt is mistake or an incorrect amount:

If you think that they have the wrong person or that the debt is incorrect:

Contact the collection agency and explain. They must take reasonable steps to make sure you are the right person to contact about the debt:

• If you are not the right person, they can’t keep contacting you.

• If you are the right person, but the debt is incorrect, you can take the following steps:

  1. if you already paid the debt, contact the collection agency and, if applicable, original creditor to correct the error. Provide supporting documentation if available.

  2. check your credit report to see if the amount is correct and write to the credit reporting agency and provide the correct information.

A collection agency cannot do any of the following to you, or anyone else:

• phone on holidays, Sundays (except between 1 p.m. and 5 p.m.), or on any other days between 9 p.m. and 7 a.m., unless you request it;

• use threatening, profane, intimidating or coercive language;

• use undue, excessive or unreasonable pressure; or harass you;

• contact you more than three times in seven days on behalf of the same creditor, subject to certain exceptions;

• give false or misleading information to any person;

• contact you in a way you told them to stop using because it cost you money; or

• charge you any fees, other than for non-sufficient funds on cheques.

A collection agency can contact the following people but only in limited circumstances:

  1. Your employer:

• once only to confirm your employment, business title or business address;

• if your employer has guaranteed the debt and the contact is about that guarantee;

• if it’s about a court order or an automatic salary deduction (wage assignment); or

• if you have given the collection agency written permission.

2.Your spouse, family or household member, relative, neighbour, friend or acquaintance:

• to get your contact information if the agency doesn’t have it already;

• if you asked the agency to discuss the debt with that person; or

• if that person has guaranteed the debt and the contact is about that guarantee.

Ask the right questions when a collection agency contacts you, such as:

  • may I have your Ontario registration number?

  • have you sent me a written notice with my creditor’s name and the amount of money that I owe?

  • how often will you be contacting me?

If you’re contacted by mistake

A collection agency can’t keep contacting you if:

  • you send a registered letter to the agency saying that you dispute the debt and suggest the matter be taken to court

  • you (or your lawyer or paralegal) send a registered letter with your lawyer or paralegal’s contact information telling the agency to communicate only with your lawyer or paralegal

  • you have told them that you are not the person they are looking for, unless the agency has taken reasonable steps to make sure you are the person that they should be contacting

A collection agency can’t contact your spouse, family member, a relative, neighbour or friend except to get your address and telephone number, unless:

  • the person has guaranteed the debt

  • you have given permission for the person to be contacted to act on your behalf

Also, a collection agency can’t:

  • give false or misleading information to any person

  • recommend that a creditor take legal action against you without sending you notice first

File a complaint

If a collection agency has broken the rules, you can send the agency a letter and include what you believe they did wrong and that you expect them to follow the law

If this does not resolve the problem, you can file a complaint. Learn more how you can do this at http://www.ontario.ca/consumers/filing-consumer-complaint

If you file a complaint, be sure to include documents and evidence to support it. For example, you can include:

  • all letters, emails and faxes that you sent or received from the collection agency

  • a record of the date, time and details of the phone calls or messages you received

  • a photograph of your telephone display showing the collector’s phone number and the time they called

  • digital recordings of phone messages or conversations

  • letters from your employer, co-workers, family or friends confirming that the collector contacted them

Tips to deal with debt

If you are contacted by a collection agency, try to pay the money you owe as soon as possible. Otherwise, the problem could get worse. If you can’t pay the full amount that you owe at once, try to arrange monthly payments.

The person or business that you owe money to might:

  • take you to court and get a judgement against you, allowing them to seize your assets or take part of your salary

  • sell your debt to another person (your rights under Collection and Debt Settlement Services Act would not apply unless that person hires a collection agency)

  • report the debt to a consumer reporting agency, which could lead to you having a bad credit record

When paying off your debt, make sure to:

  • never send cash and always get a receipt or proof of payment

  • not bounce cheques and miss payments

  • contact the collection agency in writing if your financial circumstances change or you can’t make payments

  • contact the agency and the original creditor if there is a mistake in your account

  • deal only with the collection agency to avoid any confusion, if everything is correct

Where to get help

If your financial problems are getting out of hand, consider contacting a credit counselling service for help through:

  • The Ontario Association of Credit Counselling Services

  • Credit Counselling Canada

  • The Canadian Association of Insolvency and Restructuring Professionals (CAIRP)

Credit counsellors are different than debt settlement services. Debt settlement services will charge you a fee to help you negotiate a plan to repay your debts. Credit counsellors are often not-for-profit organizations.

Watch out for debt settlement companies that:

  • say they can reduce your debt by 50% or more

  • charge large, upfront fees

  • claim that if you work with them there will be no negative effect on your credit report

  • claim that their program is approved by the government

  • say they can get collection agencies to stop calling you

Always take the time to understand your contract.

Remember that some of these companies will charge a cancellation fee if you want to end your contract before the end of its term.

They may also not refund any money that you paid them.

 

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WHAT IF MY KID FAILS THE MORNING SCREENING? DO WE GO TO SCHOOL? WHAT DO WE DO? YOUR ANSWERS......

WHAT IF MY KID FAILS THE VIRUS SCREENING IN THE MORNING?

Firstly, if your child has a chronic medical condition, are the child’s symptoms worse or different than normal?

If the same, your kid may attend school (with stable symptoms of a known chronic condition), but speak to your family doctor if you have any concerns.

If yes, call the school and inform them of your kid’s illness. Your kid should stay home and seek medical advice.

However, if your kid was tested they are required self-isolate while the results are pending. If the results are negative, and your kid has no known exposure, attend school when the symptoms are resolved for 24 hours.

If it has been recommended to be tested, but you did not get tested, and if no alternative diagnosis was given, your kid should self-isolate for 14 days from the onset of the symptoms.

Source: https://www.hkpr.on.ca/

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WHAT IF THERE IS A SCHOOL OUTBREAK? WHO DOES WHAT? WHO'S ON FIRST? YOUR ANSWERS.......

What happens if there is a local school outbreak? Who does what? Who's on first? 

Firstly, the “Local Public Health Unit” (“LPHU”) may declare an outbreak if it determines two or more lab-confirmed COVID-19 cases in students/staff/visitors in a school with an epidemiological link within a 14-day period where at least one case could have reasonably acquired their infection in the school (including transportation and before and after school care).

Secondly, if so……..

The Health Unit will:

  • notify District School Board (DSB) COVID-19 Lead and school principal of outbreak declaration and request further information;  

  • determine which cohort(s) must isolate and indicates partial or full school dismissal;

  • communicate cohort isolation requirements and outbreak masures and enhanced cleaning requirements to the District School Board COVID-19 Lead and school principal;

  • post outbreak notice on website (included in cumulative total/dashboard);

  • conduct contact tracing of determined close contacts of positive case and provides guidance on testing and isolation; and

  • notify Dstrict School Board COVID-19 Lead and school principal when safe return to school is indicated.

The school should:

  • compile information needed in relation to staff/student cohort(s) and provides to LPHU, including:

• attendance records;

• class/cohort lists and seating charts;

• before/after school child care lists;

• transportation lists and seating charts;

• current contact info for students/staff;

• special assignments/programs/activities (e.g., Special Education); and

• records of essential visitors;

  • distribute parent communications as directed by District School Board and in collaboration with LPHU; and

  • implement any/all outbreak measures recommended by LPHU including:

• posting outbreak signage at entrance and affected areas;

• informing outside agencies that use the school of the outbreak;  

• only allowing essential visitors into the school;  

• further minimizing the movement of staff between cohorts;

• limiting student activities to their required cohorts and discontinuing extracurricular activities, as much as possible;  

• restricting all staff (including school, transportation, staff from home care agencies or others that provide medical services to those in school) from working in other schools; and

• for social settings outside of the school recommend to staff, students and their families, adherence to the social bubble (size based on current provincial recommendations).

The School Board should:

  • notify School Principal of outbreak; and  

  • considers communication linking to outbreak posting on school board website.

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CKL BUSINESSES - YOU MUST NOW "SCREEN" ALL STAFF AND SERVICE PROVIDERS TO ENTER YOUR BUSINESS - WHAT YOU NEED NOW TODAY.

By order of Ontario health officials, starting September 25, 20200, all workplaces in Ontario must screen all workers, contractors, volunteers and outside service providers for COVID-19 as a condition of entry to the premises.

Failure to comply can lead to significant penalties, including potentially fines and imprisonment under the legislation. 

The new "COVID-19 Screening Tool for Workplaces (Businesses and Organizations)" (PDF - the "Screening Tool") is available here:

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

Per the Screening Tool, virtually everyone must be screened to enter the workplace; namely:

  • workers, which means all staff and is "intended to include students, contractors or volunteers that conduct business or related activities where applicable and appropriate"; and

  • essential visitors, which "includes individuals providing a service in the establishment who are not employees or patrons of the establishment (e.g., delivery, maintenance, contract workers)."

You do not need to screen:

  • patrons of an establishment; or

  • "emergency services or other first responders entering a workplace for emergency purposes".

However, businesses are not prohibited by the Screening Tool from subjecting these individuals to screening in accordance with applicable legal requirements. 

The Screening Tool outlines three screening questions that should be used "at a minimum". Each individual subject to the Screening Tool is to be asked:

  • whether the individual has any new or worsening symptoms or signs of COVID-19;

  • whether the individual has travelled outside of Canada in the past 14 days; and

  • whether the individual has had close contact with a confirmed or probable case of COVID-19.

These screening questions are to be applied before or at the time a worker enters the workplace at the beginning of their workday or shift, or when an essential visitor arrives.

If the worker or essential visitor answers "yes" to any of the three questions, then pursuant to the Screening Tool, the individual should be advised that they should not enter the workplace, should self-isolate at home and should call their health care provider or Telehealth Ontario.

The Screening Tool also applies to any outdoor or partially outdoor workplace.

What is a "probable case of COVID-19"?

Per the Ontario Ministry of Health's Case Definition for COVID-19 (PDF), which as of August 6, 2020, defines a probable case as follows:

A. a person (who has not had a laboratory test) with symptoms compatible with COVID-19 AND:

  1. traveled to an affected area (including inside of Canada) in the 14 days prior to symptom onset; OR

  2. had close contact with a confirmed case of COVID-19; OR

  3. lived in or worked in a facility known to be experiencing an outbreak of COVID-19 (e.g. long-term care, prison),

OR

B. a person with symptoms compatible with COVID-19 AND in whom laboratory diagnosis of COVID-19 is inconclusive.

Overview

Before this, employers were already required to operate workplaces in compliance with the "advice, recommendations and instructions of public health officials", which would include public health officials at the municipal, provincial and federal level as applicable.

Now, Ontario employers must now specifically comply with the requirements of the Screening Tool, and to implement such screening at any physical workplaces it operates in the province.

Any employer who was not already screening workers and other visitors to their premises should implement the Screening Tool as a condition of entry.  Employers who are already screening workers and other visitors should review their screening procedures in light of the requirements of the Screening Tool.

The Screening Tool has an acknowledgement that it "may be adapted based on need and the specific setting" and, therefore, there appears to be some flexibility in how it is implemented.

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CKL - MINIMUM WAGES INCREASE OCT. 1 - WHAT YOU NEED TO KNOW.

Employers operating in Ontario, Canada should be aware that Ontario’s minimum wage rate is set to increase on October 1, 2020. This increase affects not only the general minimum wage rate, but also the alternative minimum wage rates that apply in Ontario.

Effective on October 1, 2020, all minimum wage rates are increasing as follows:

 

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WHAT HAPPENS IF I DIE WITHOUT A WILL? WHAT'S ALL THE FUSS ABOUT?

You know you should do it - make an estate plan. Do a last will and testament and your powers of attorney. Don't let the government take more than necessary; protect your beneficiaries. 

But what happens if you don't listen and you have no will or estate plan? Is it really that bad? 

Answer - yes, it can be. Read on. 

What happens if I die without a valid will?

An individual is said to die "intestate" if there is no properly executed Will. When a person dies intestate a number of questions present themselves. Among them will be, who will administer my estate? How will my assets be distributed?

Under these circumstances, in order to deal with your assets, someone has to apply to the Court, in order to become the legal representative of your estate and to receive what is known as a Certificate of Estate Trustee Without a Will (frequently referred to informally as “probate”). That person will be the closest relative who wants to assume the burden of looking after your assets, paying your taxes and other debts, selling your assets and distributing the balance of your estate to a person or persons, in accordance with a very specific list of relatives prescribed by law. If more than one such relative wishes to be appointed, in a Court application which must be made, a Judge will decide who will be appointed, after a hearing and substantial expense.

When making the original application for a Certificate, “probate fees” (formally, Ontario “Estate Administration Tax”) will be payable on the fair market value of your assets. It is calculated at 1.5% of the gross value of assets in excess of $50,000 ($15 per $1,000). In arriving at values, for purposes of that tax, the gross values of all assets are included. However, only the value of real estate situated in Ontario is included. The only debts deductible from gross values of assets are the amounts owing on any mortgages registered against Ontario real estate.

Where a person dies intestate, and regardless of any desires of the deceased to leave specific items to particular people, the total estate, after payment of debts, including Income Tax, will be divided strictly in accordance with existing laws.

In Ontario, the distribution of an estate where there is no valid will is as follows:

a) Where the deceased was married but had no children, the surviving spouse inherits the whole of the estate.

b) Where the deceased was married and had children, the first $200,000 goes to the surviving spouse and the remainder is divided as follows:

i) If the deceased had one child, the remainder of the estate will be divided equally between the spouse and the child. But, if the child had died before the deceased, leaving children then alive, that child’s share of the estate will be divided among those surviving children.

ii) If the deceased had more than one child, 1/3 of the remainder of the estate goes to the spouse and the remaining 2/3rds is divided equally among the children. But, if any child had died before the deceased, leaving children then alive, that child’s share of the estate will be divided among those surviving children.

iii) If there is no surviving spouse, but there is a surviving child or children, the estate will be divided equally among those children. But, as before, if a child had died before the deceased, leaving children then alive, that child’s share is divided among those surviving children.

iv) If there is no surviving spouse, child or deceased child’s children, the estate is divided between surviving parents, equally.

v) If no surviving parents, but there are brothers or sisters, then they share equally.

vi) If no brothers or sisters, then nieces and nephews (by blood, not marriage) share equally.

vii) If no nieces or nephews, the estate is distributed equally to the next closest next of kin.

viii) If no such next of kin survive, then the estate becomes the property of the Ontario government.

It should be noted that if anyone under the age of 18 is entitled to any share in the Estate, the amount has to be paid into Court and will only be received by the beneficiary on a special application to the Court, otherwise, only when reaching 18.

Those are likely most unhappy results!

Credit: 

Aird & Berlis LLP/Aird & McBurney LP, published via Lexology.com on Sep. 28, 2020 

 

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CERB IS OVER - WHAT'S NEXT? THE NEW, EXPANDED EI BENEFITS EXPLAINED. GIG WORKERS, TOO!

As CERB ends, the Federal Government has announced the introduction of Bill C-2, An Act relating to economic recovery in response to COVID-19, to create three new temporary Recovery Benefits for Canadians who are unable to work for reasons related to COVID-19. These benefits will be provided to workers who are not eligible for EI. If Bill C-2 is passed, these three benefits will provide income support to Canadians:

  • A Canada Recovery Benefit (CRB) of $500 per week for up to 26 weeks, for self-employed workers or workers who are not eligible for EI but still need income support. The CRB would aid Canadians who have not returned to work or who have returned to work but have had their income decrease by at least 50%. Workers receiving this benefit must be available and looking for work and must accept work where the request is reasonable;

  • A Canada Recovery Sickness Benefit (CRSB) of $500 per week for up to two weeks, available to workers who are sick or must self-isolate due to COVID-19; and,

  • A Canada Recovery Caregiving Benefit (CRCB) of $500 per week for up to 26 weeks per household, available for Canadians who are unable to work because they have to care for a child under the age of 12 or another family member because schools, day cares, or care facilities are closed because of COVID-19 or because the individual receiving care is sick or must quarantine.

CRB, CRSB, and CRCB will be available for Canadians to apply for through the Canada Revenue Agency (CRA) for up to one year maximum until September 21, 2021.

As previously announced, temporary measures to make EI benefits more accessible to Canadians are also coming into effect on September 27, 2020 for one year. The changes to accessing EI will create a minimum weekly benefit payment of $500 for all those receiving EI, at the same level as the CRB.

Bill C-2 also proposes amendments to the Canada Labour Code to make sure that federally regulated employees have job-protected leave so they may utilize the Benefits if necessary.

The Government of Canada will also invest $1.5 billion in Workforce Development Agreements with provinces and territories. This is in addition to the $3.4 billion already provided to provinces and territories under Labour Markets Development Agreements and Workforce Development Agreements. The announced goal is to provide Canadians with the skills training and employment supports they need to re-enter the workforce, especially those in sectors hit hardest by the pandemic.

Bill C-2, including detailed eligibility criteria, can be found on the Parliament of Canada’s website.

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HOW TO CALCULATE YOUR CANADA WAGE SUBSIDY

The Canada Revenue Agency’s has an online calculator for the Canada Emergency Wage Subsidy (“CEWS”).

As a Canadian employer who has seen a drop in revenue due to COVID-19, you may be eligible for a subsidy to cover part of your employee wages, retroactive to March 15. This subsidy will enable you to re-hire workers, help prevent further job losses, and ease you back into normal operations.

The CEWS is extended to December 19, 2020, but is likely to be extended to the summer of 2021.

It now uses a new variable-rate subsidy, but the subsidy is arguably now more difficult to calculate, mostly because it is comprised of two, variable-rate, subsidies:

  • the “base subsidy,” which is available to employers with any monthly revenue drop; and
  • the “top-up subsidy,” which is only available to employers with a 3-month average revenue drop of over 50%.

The base subsidy is calculated as a multiple of the employer’s monthly revenue drop percentage, and the multiple varies depending on the Claim Period. 

Both the base subsidy and the top-up subsidy are subject to a maximum threshold.

Employers may also compare revenue based on the current month or the prior month, as well as a special “safe harbour rule” for Claim Periods 5 and 6 to ensure employers receive a subsidy at least equal to what they would have received under the previous flat-rate subsidy rules. These too are of course welcome measures, but also create additional complexity.

One advantage of the calculator is that, to account for the changes to the rules beginning in Claim Period 5, it will automatically apply the best available subsidy rate based on the information entered.

The calculator is designed to assist employers in navigating the new rules, as well as to enable them to:

  • calculate (based on their particular circumstances) their base and/or top-up subsidy amounts to enter into their CEWS online application form;
  • preview their total estimated subsidy; and
  • print their results and save them to validate their claim.

For employers with under 20 employees, who are entering employee pay on a weekly basis, there is an online calculator option available, into which each employee’s data is entered directly. Employers with 20 or more employees, or who wish to enter pay on a bi-weekly basis, will need to download and complete a spreadsheet to calculate the total eligible remuneration, the base subsidy, and the top-up subsidy.

The current calculator can be used only for Claim Periods 1 to 5, with more periods to be added going forward.

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SEPARATED PARENTS - WILL THE COURT ORDER ONLINE OR IN-PERSON SCHOOLING? IT DEPENDS.............

Mom and Dad are separated, with minor children.

They had a dispute about whether the kids should attend remote, online learning or attend school.

They escalated their dispute to the Family Court.

The Court held they would attend online learning for one semester.

The Court noted:

The policy of the provincial government is that in-person school attendance is optional for the 2020-2021 school year. If parents decide their children should not return to the physical classroom, remote learning is available. This flexibility allows parents to make the best decision for their family. However, this model breaks down where parents have separated and are not like-minded about their children’s best interests. That is the case for [these children]. The result for them over the past weeks has been ambiguity and confusion about their return to school plus increased conflict between their parents on the heels of what has already been many months riddled with change and uncertainty……..There can be no doubt that the school environment offers children social, psychological, and developmental advantages. The question here is whether those benefits outweigh the physical risks of returning to that environment in the context of this two-household family?" 

The Court considered many factors in its decision-making, weighing in favour of minimizing the dispute and declaring online learning would be appropriate, at least temporarily.

So said the Court:

… I take notice of the information widely repeated in the public domain that very young children are likely to be at higher risk due to their immature immune systems.  A return to in-class learning brings increased risk of exposure to COVID-19 and, in turn, increased risk of transmitting the virus to vulnerable family members. It is a risk that I find unnecessary, for this family, at this time. [The children] are good students and are surrounded by trained educators in both households to help them, if needed. Their mother will be in the home every day at least until late January 2021 to guide and supplement their online learning. I am also satisfied that both parents are attentive to the girls’ need for social interaction, social learning, and physical exercise.

…. For these reasons, I find it is in [the children’s] best interests to attend school virtually for the 2020 fall semester and to do so from their mother’s home.  The father is away from the home during the day and the other members of his household are working, either from home or away from the home.

Most important, the Court yet again cautioned separated parents to act flexibly, reasonably and in the best interests of children, which rarely involves a heated, protracted Family Court proceeding. 

I encourage the parties to make every effort to resolve this issue quickly and focus on reducing the conflict between them, especially as the children return to their studies and grapple with the many challenges and changes the world continues to present.  I also urge the parties to consider the most sensible schedule for the children in the context of all their needs and best interests. [The children] deserve nothing less.

The Case:

Joachim v. Joachim, 2020 ONSC 5355

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SOCIAL GATHERINGS AND CIRCLES IN THE CKL FOR DUMMIES.

Social gatherings can be made up of any group of people from outside a household or social circle, but physical distancing of at least two metres must be maintained or a face covering must be worn when physical distancing is a challenge or required.

People having a social gathering can't hug or touch each other.

Social Circles

As the fight against COVID-19 continues, social circles remain the safest way for Ontarians to expand the number of people they can come in close contact with, without having to physical distance. To form a safe social circle, Ontarians should follow these five simple steps:

  1. Start with your current circle: the people you live with or who regularly come into your household.

  2. If your current circle is under 10 people, you can add members to your circle, including another household, family members or friends.

  3. Get agreement from everyone that they will join the circle.

  4. Keep your social circle safe. To protect it, maintain physical distancing with anyone outside of your circle.

  5. Be true to your social circle. No one should be part of more than one circle.

Everyone living in the same household is in a social circle. People in the same social circle do not have to physically distance and can hug and touch each other.

Public Health Advice

Whether in a social gathering or as part of a social 'circle' it remains critical for Ontarians to continue following public health advice to help stop the spread.

  • Staying home when ill, or keeping your child home from school when ill, even with mild symptoms.

  • Maintaining physical distancing with anyone outside of your (maximum 10 person) social circle.

  • Protecting your social circle.

  • Adhering to gathering limits and rules.

  • Regular and thorough handwashing.

  • Wearing a face covering indoors and outdoors where physical distancing is a challenge or required.

For additional protection, the Ontario government is encouraging everyone to download the new COVID Alert app on their smart phone from the Apple and Google Play app stores.

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CERB IN THE CKL ENDS NEXT WEEK - NOW WHAT? EI - THAT'S WHAT. WHAT YOU NEED TO KNOW.

The Government of Canada has and continues to provide support to Canadians who face ongoing hardships from the COVID-19 pandemic. A few recent updates for those who have had their employment impacted by the pandemic, is a simplified Employment Insurance (EI) program, as well as new income support benefits to take effect as of September 27, 2020. To assist in the transition, the Canada Emergency Response Benefit (CERB) has been extended by 4 weeks, allowing for a maximum of up to 28 weeks of benefits.

The purpose of this program was designed to assist those who remain unable to work due to the COVID-19 pandemic, provided they meet eligibility requirements, and to introduce new temporary and taxable recovery benefits to provide further support.

The eligibility requirements for the program consist of the individual having worked 120 hours in the last year to qualify for a minimum EI benefit rate of $400/week, for at least 26 weeks of regular benefits.

If eligibility requirements are not met for EI, there are three new income support benefits available as of September 27, 2020 for a period of one year:

1. Canada Recovery Benefit: For individuals (ie. self-employed) who require support as they remain unable to return to work due to COVID-19, or who have had their hours reduced since the pandemic and have not voluntarily quit their job. Employment and/or self-employment income needs to be at least $5,000 or more in either 2019 or in 2020. This benefit provides for $400/week for up to 26 weeks. Note, that if income is more than $38,000 (excluding the Canada Recovery Benefit), the claimant would need to repay some, or all, of the benefit through their income tax return.   

2. Canada Recovery Sickness Benefit: For individuals who are unable to work because they are sick and/or must self-isolate due to COVID-19. This benefit provides for $500/week for up to 2 weeks in a one-year timeframe. Claimants need to be employed or self-employed at the time of the application with income to be at least $5,000 or more in either 2019 or in 2020. Claimants must have missed a minimum of 60% of their scheduled work, in the week that they claim the benefit. Note, a medical certificate is not required to qualify, and the benefit is taxable.  

3. Canada Recovery Caregiving Benefit: For individuals who are providing care to children who are under 12 years old, to support other dependents or providing care to a family member with a disability. The benefit provides for $500/week for up to 26 weeks per household. Individuals need to be employed or self-employed on the day immediately preceding the period for which the application is made, with income to be at least $5,000 or more in either 2019 or in 2020. Claimants must have been unable to work for at least 60% of their normal work week. Note, the claimant cannot be receiving paid leave from an employer in the same week, and cannot be receiving CERB, EI Emergency Response Benefit, Canada Recovery Benefit, Canada Recovery Sickness Benefit, short-term disability benefits, workers compensation benefits or any EI Benefits in the same week. This benefit is taxable. 

The Canada Revenue Agency will provide further information as to how and when Canadians can apply at the following link:  www.canada.ca/coronavirus.

 
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TIPS FOR HOSTING A GATHERING AT YOUR HOME, INCLUDING THANKSGIVING. STAY SAFE; MINIMIZE TRANSMISSION.

With the spike in cases, more attention is being given to hosting gatherings, like holiday get togethers, Thanksgiving, etc. 

Here are tips for hosting a family or other gathering at your home, courtesy of our Health Unit: 

  • Remind guests to stay home if sick. Consider keeping a list of guests who attend for potential future COVID-19 contact tracing needs.

  • When entertaining, consider physical distancing in determining the number of people to invite to your home. Limit the number of guests to a manageable number that allows people to safely maintain a 2 metre (6 foot) distance, especially if they are outside your social circle/household. While Ontario currently puts a limit on 50 people for indoor gatherings and 100 guests for outdoor events, these numbers may be too high for a comfortable gathering at your home.

  • Be upfront with your guests about the COVID-19 prevention measures you’re taking so they know what to expect before they arrive.

  • When possible, host your gathering outdoors. In colder weather months, go indoors but try to ensure the room or space is well-ventilated (e.g. open a window).

  • Arrange tables and chairs in advance to allow for physical distancing (if already set up, guests may be reluctant to move them).

  • People from the same household or social circles can be grouped/seated together, but should be 2 metres (6 feet) apart from other families.

  • When guests arrive, minimize gestures that promote close contact between those outside households or social circles.

  • Encourage guests to wear masks when physical distancing is difficult. Consider providing masks for guests or ask them to bring their own.

  • Ensure there is enough soap and hand sanitizer for people to use during the gathering.

  • Use single-use hand towels or paper towels for drying hands so guests do not share a towel.

  • Remind guests to wash their hands before serving or eating food.

  • Limit the number of people handling or serving food (including limiting access to where food is being prepared, such as the kitchen).

  • Avoid buffet-style meals. If serving any food, consider identifying one person to serve all food so that multiple people are not handling the serving utensils

  • Limit contact with high-touch surfaces or shared items. If possible, clean and disinfect these surfaces and shared items between uses.

  • If you choose to use any shared items that are reusable (e.g. seating covers, tablecloths, linen napkins), wash, clean, and sanitize them after the event.

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PAY EQUITY FOR DUMMIES - WHAT YOU NEED TO KNOW.

Employers with 10 or more employees in Ontario are required to preserve pay equity in accordance with the Ontario Pay Equity Act, RSO 1990, c P7 (“PEA”).

Under Ontario's laws, "pay equity" is different from "equal pay for equal work".

Under Ontario’s Employment Standards Act, 2000 (ESA), subject to certain exceptions, an employer cannot pay one employee at a rate of pay less than another employee on the basis of sex when they perform substantially the same kind of work in the same establishment, their work requires substantially the same skill, effort and responsibility and their work is performed under similar working conditions.

Under Ontario's Pay Equity Act, "pay equity" requires an assessment of all jobs in an organization and an unbiased comparison of the work done by women to the work done by men in order to determine whether the women are being compensated equitably. For example, the receptionist for a company may be as valuable to the organization as the warehouse shipper-receiver. The Pay Equity Act requires an employer to compensate work done by female job class(es) at least equally to work done by comparable male job class(es).

Pay equity is not about equal pay for equal work in the traditional sense of a woman and a man being paid the same wage for the same job. Instead, it focuses on whether traditionally female jobs are being paid the same as traditionally male jobs of equal value. Implementing pay equity is a four-step process. First, employers must identify the job classes within the establishment, including the gender and job rate of each class. Second, they must ascribe the value of each job class based on skill, effort, responsibility and working conditions. Third, they must compare all female job classes by using the prescribed methodology of compensation. Finally, if female job classes are underpaid, their wages must be adjusted to eliminate that gap.

Once pay equity is achieved, it is important that employers work actively to maintain it, especially as jobs are added or eliminated. There are penalties for failure to comply, including back payments to make up for past inequity and fines if there is wilful disregard of the rules. When there is a failure to abide with pay equity obligations, the rectification process can be onerous. Pay equity compliance is fairly straightforward to achieve at the onset, but can be difficult to remedy after non-compliance has already occurred.

If your business has 10 or more employees, but has not yet assessed or implemented pay equity, you should act quickly to ensure that you are complying with the PEA.

What’s the difference between “pay equity” and “equal pay for equal work”?

Definition

​Pay Equity

​Equal Pay for Equal Work

Pay Equity is equal pay for work of equal value.

Equal Pay for Equal Work addresses situations in which men and women do the same work.

​The Pay Equity Act requires employers to pay female jobs at least the same as male jobs if they are of comparable value.  Pay equity compares jobs usually done by women with different jobs usually done by men. Female jobs are mostly or traditionally done by women such as librarian, childcare worker or secretary. Male jobs are mostly or traditionally done by men, such as truck driver, firefighter, or shipping clerk.

​The Equal Pay provisions of the Employment Standards Act require that men and women receive equal pay when doing the same job or substantially the same job such as two cooks or two machine operators on the same line.

The value of jobs is based on the levels of skill, effort, responsibility and working conditions involved in doing the work.

​Substantially the same work means the same kind of work that involves about the same levels of skill, effort, responsibility and working conditions. The duties do not have to be exactly the same to be substantially the same.

Key Differences

​Pay Equity

​Equal Pay for Equal Work

Pay equity compares the value and pay of different jobs, such as nurse and electrician.

Equal pay compares the pay of similar jobs.

​Only people (both men and women) in jobs done traditionally by women can complain that their work is undervalued.

​Either men or women can complain. If a male incumbent is paid less than a female incumbent in the same job, he can file a complaint. As well, a woman can complain if she is paid less than a man in the same job.

Clarifying Questions

​​Pay Equity

​Equal Pay for Equal Work

If you answer "yes" to ​the following questions you may have a pay equity complaint.

  • Are you in a ​job that is typically or traditionally female such as secretary, nurse, payroll clerk?
  • Are you comparing your job to different jobs, jobs that are mostly or traditionally done by men, within the same employer?

Call the Pay Equity Commission Toll-Free
at 1-800-387-8813 or 416-314-1896
TTY: 416-212-3991 or TTY: 1-855-253-8333

If you answer "yes" to the following questions you may have an equal pay for equal work complaint.

  • Are you comparing your work and pay to someone doing your own or a very similar job?
  • Are you comparing your work and pay to a person of the opposite gender?

Call the Employment Standards Branch at
1-800-531-5551 or 416-326-7160 or visit their site.

 

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HOW SHOULD EMPLOYERS RESPOND TO EMPLOYEES WHO HAVE CHILDCARE OBLIGATIONS DURING COVID-19?

The workplace will soon be an even trickier place to navigate when considering the new challenges that employers are faced with in accommodating their employees’ family responsibilities.

When the COVID-19 pandemic dramatically changed the state of the world in March 2020 and made employees’ normal childcare arrangements generally unavailable, Canadian employees (other than some essential workers) began to work from home. As the rate of infection diminished, Canada gradually reopened; most jurisdictions are now in Stage 3 of their reopening processes, with public health and workplace safety restrictions in place. Many businesses and public spaces have reopened, and while many employers have asked their employees to return to work, some have asked their employees to continue to work from home.

In the meantime, the world has not returned to normal for employees’ children. Daycare centers that initially remained open provided childcare for only essential workers; in the spring, other daycares opened with strict health and safety guidelines in place. Camps did not operate in the summer. Although there are plans to get children back into the classroom in the fall, many schools intend to adopt a hybrid model due to social distancing requirements, with students in the classroom on some days only, and learning online the rest of the week. A hybrid back-to-school arrangement, together with the possibility that schools might close upon the occurrence of a second wave, or upon a COVID-19 outbreak within a specific school, will create childcare difficulties for employees. Furthermore, some parents who have childcare options available to them in the form of school, daycare, or babysitters may resist using them due to anxiety about the risk of exposing their children or another family member to COVID-19.

In responding to employees who have childcare issues, employers have several options to consider. They include providing employees with flexible accommodations; placing them on unpaid statutory leave under applicable employment standards legislation; or in the rare circumstances in which employees may be entitled to it, placing them on paid leave made available through a collective agreement in a unionized context, an employment contract, or a workplace policy. We consider all of these options below.

 

Family Status Accommodation

We wrote extensively about the unsettled legal approach to family status accommodation in Canada. As noted, although human right statutes in Canada prohibit discrimination based on family status, historically family status complaints, which most often relate to discrimination in employment, are generally made infrequently, especially as compared with discrimination complaints on other grounds. The frequency of family status complaints may rise in a COVID-19 environment and we recommend that employers become familiar with the unsettled approach to family status discrimination in Canada.

In normal circumstances, a family status complaint will generally fail if it is based on a preference to care for a child at home rather than a need to do so. However, in a pandemic scenario, even if schools and daycares are available, some employees may be concerned that their children or other family members will become ill with COVID-19 if their children attend. While employees are generally expected to explore other childcare options during business hours, such as babysitting by a grandparent or a paid babysitter, they may resist these options during the pandemic to protect the health of the grandparent and/or the child. For this reason, in the extraordinary context of the pandemic, employers should consider accommodating their employees by developing a flexible company-wide accommodation policy that takes a reasonable approach to their employees’ circumstances. This may include allowing employees to work from home or modify their work schedules or work duties, and tolerating disruptions from children during teleconference meetings.

 

Unpaid Leave

Despite an employer’s best efforts to provide a feasible accommodation to an employee, it may not be able to find one. If accommodation is not an option, employees may be entitled to unpaid leave under applicable employment standards legislation. For example, in Ontario, the following unpaid, job-protected leaves may be available to parents whose children are at home during the COVID-19 pandemic:

Family Responsibility Leave: After working for an employer for at least two consecutive weeks, most employees in Ontario have the right to take up to three days of unpaid job-protected leave each calendar year because of an illness, injury, medical emergency or urgent matter relating to, among others, the employee’s child, step-child, or foster child. As the circumstances surrounding the COVID-19 pandemic are unprecedented, it is unclear whether, when employees decide to keep their children at home even when schools and daycares are open, the courts will characterize the matter as “urgent.” However, in a hybrid school model, on days when children are not allowed to attend school and must learn online, courts may be more likely to characterize the matter as “urgent” and entitle the employee to this unpaid leave; on days when classes are on the school’s premises, courts may not be inclined to do so.

Infectious Disease Emergency Leave: In response to the COVID-19 crisis, the governments of a number of jurisdictions in Canada amended their employment standards legislation to entitle employees to emergency unpaid job-protected leave when they are unable to work for reasons related to the designation of COVID-19 as an infectious disease. In Ontario, for example, the new unpaid Infectious Disease Emergency Leave applies when an employee will not be performing work because the employee is providing care to a specified list of individuals for reasons related to COVID-19, including to children, because of closures of schools and daycares. Entitlement to Infectious Disease Emergency Leave continues as long as the circumstances apply and COVID-19 continues to be a designated infectious disease. Note that if the school or daycare is open, the employee will not be entitled to this leave. If employees have children attending a hybrid model school, they may be entitled to Infectious Disease Emergency Leave on days when their children may not attend school and must learn online.

Finally, in rare circumstances, some employers may have agreed that their employees will be entitled to paid leave if they have childcare obligations in a scenario like the one we are currently facing, for example, pursuant to a collective agreement in a unionized environment, or pursuant to an employment agreement or a workplace policy. Employers are encouraged to consider whether their employees are so entitled before placing them on unpaid leave under applicable employment standards legislation.

 

Bottom Line for Employers

The pandemic has made it impossible to predict exactly how courts will treat employees who fear sending their children to daycare or school and choose to keep them at home. Although these employees may not be strictly entitled to family status accommodation, in the unprecedented circumstances of a global pandemic, we recommend that employers adopt a flexible approach to accommodating employees who have children at home, whether due to preference or a lack of other options. If flexible accommodation is not a viable option, we recommend that employers consider placing these employees on unpaid leave, after first considering whether they have agreed to put them on paid leave in the circumstances, which will rarely be the case.

More information regarding child care services and refusals to work can be found at: http://wardlegal.ca/31596034289338

Thanks for reading.

Credit: 

Rhonda B. Levy and Barry Kretzky, Littler LLP (via Lexology.com on August 24, 2020)

 

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NEW INCOME SUPPORT BENEFITS & UPDATES RE: EMPLOYMENT INSURANCE (EI) AND CANADA EMERGENCY RESPONSE BENEFIT (CERB)

The Government of Canada has and continues to provide support to Canadians who face ongoing hardships from the COVID-19 pandemic. A few recent updates for those who have had their employment impacted by the pandemic, is a simplified Employment Insurance (EI) program, as well as new income support benefits to take effect as of September 27, 2020. To assist in the transition, the Canada Emergency Response Benefit (CERB) has been extended by 4 weeks, allowing for a maximum of up to 28 weeks of benefits.

 

The purpose of this program was designed to assist those who remain unable to work due to the COVID-19 pandemic, provided they meet eligibility requirements, and to introduce new temporary and taxable recovery benefits to provide further support.

 

The eligibility requirements for the program consist of the individual having worked 120 hours in the last year to qualify for a minimum EI benefit rate of $400/week, for at least 26 weeks of regular benefits.

 

If eligibility requirements are not met for EI, there are three new income support benefits available as of September 27, 2020 for a period of one year:

 

1. Canada Recovery Benefit: For individuals (ie. self-employed) who require support as they remain unable to return to work due to COVID-19, or who have had their hours reduced since the pandemic and have not voluntarily quit their job. Employment and/or self-employment income needs to be at least $5,000 or more in either 2019 or in 2020. This benefit provides for $400/week for up to 26 weeks. Note, that if income is more than $38,000 (excluding the Canada Recovery Benefit), the claimant would need to repay some, or all, of the benefit through their income tax return.   

 

2. Canada Recovery Sickness Benefit: For individuals who are unable to work because they are sick and/or must self-isolate due to COVID-19. This benefit provides for $500/week for up to 2 weeks in a one-year timeframe. Claimants need to be employed or self-employed at the time of the application with income to be at least $5,000 or more in either 2019 or in 2020. Claimants must have missed a minimum of 60% of their scheduled work, in the week that they claim the benefit. Note, a medical certificate is not required to qualify, and the benefit is taxable.  

 

3. Canada Recovery Caregiving Benefit: For individuals who are providing care to children who are under 12 years old, to support other dependents or providing care to a family member with a disability. The benefit provides for $500/week for up to 26 weeks per household. Individuals need to be employed or self-employed on the day immediately preceding the period for which the application is made, with income to be at least $5,000 or more in either 2019 or in 2020. Claimants must have been unable to work for at least 60% of their normal work week. Note, the claimant cannot be receiving paid leave from an employer in the same week, and cannot be receiving CERB, EI Emergency Response Benefit, Canada Recovery Benefit, Canada Recovery Sickness Benefit, short-term disability benefits, workers compensation benefits or any EI Benefits in the same week. This benefit is taxable. 

 

The Canada Revenue Agency will provide further information as to how and when Canadians can apply at the following link:  www.canada.ca/coronavirus.

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EMERGENCY ORDERS EXTENDED TO SEP. 22 - MOST REMAIN IN FULL EFFECT. WHAT YOU NEED TO KNOW TODAY ABOUT ONTARIO'S ONGOING EMERGENCY ORDERS.

The Ontario government is extending orders currently in force under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (ROA).

The extensions provide the government with the necessary flexibility to address the ongoing risks and effects of the COVID-19 outbreak and ensure important measures remain in place to protect vulnerable populations, such as seniors, people with developmental disabilities and those with mental health and addiction issues.

All orders under the ROA have been extended to September 22, 2020, with the following exceptions:

On July 21, 2020, the Ontario Legislature passed the ROA to ensure important measures remained in place to address the sustained threat of COVID-19 once the provincial Declaration of Emergency came to an end. Orders, made under the Emergency Management and Civil Protection Act (EMCPA) that were in effect when the ROA came into force, were continued under the new act for an initial 30 days. Under the ROA, orders can be extended for up to 30 days at a time.

The government will continue to review all orders and will report on order extensions to the newly created Select Committee on Emergency Management Oversight.

The following orders under the ROA have been extended until September 22, 2020:

Quick Facts

  • The provincial Declaration of Emergency was terminated on July 24, 2020 when the ROA came into force.

  • The ROA allows certain orders to be amended, subject to criteria, and does not allow new orders to be created.

  • The ROA requires the Premier to table a report on any amendments or extensions of any orders within 120 days after the first anniversary of the act coming into force.

  • The power to extend or amend continued orders is limited to one year; these powers can only be extended by the legislature. If powers are extended beyond one year, an additional report is required for the extension period.

  • The Select Committee on Emergency Management Oversight will meet for the first time on August 24, 2020 to hear the rationale for decisions to extend orders.

  • A full list of orders can be found on the e-Laws website under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (ROA) and at Ontario.ca/alert.

  • As of August 10, 2020, all Public Health Units in the Province are in Stage 3 of reopening.

Additional Resources

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CKL EMPLOYERS - SEP 4 IS YOUR UPCOMING DEADLINE IF YOU HAVE EMPLOYEES REMAINING AT REDUCED HOURS OR AT HOME - YOUR OPTIONS - WHAT YOU NEED TO KNOW TODAY.

CKL employers may have an important deadline upcoming - September 4, 2020, to the extent they continue to have employees not actively working (i.e., temporarily laid off and deemed to be on Ontario's infectious disease leave of absence. 

On July 24, 2020, Ontario’s new Bill 195, Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, became law. In accordance with Bill 195, Ontario’s Emergency Declaration has ended (subject to the provincial government’s ongoing authority to extend certain existing emergency orders). One of the implications of ending the Declared Emergency is to trigger the winding down of a recent exemption to the temporary layoff provisions under the Employment Standards Act, 2000 (the “ESA”).

Pursuant to Ontario Regulation 228 / 20 (“Regulation 228”), any non-union employee whose wages were temporarily reduced or whose hours of work were temporarily reduced or eliminated during the COVID-19 Period due to the pandemic was deemed to be on infectious disease emergency leave (“IDE Leave”), rather than on layoff. Regulation 228 effectively rendered the temporary layoff provisions in the ESA inapplicable during the COVID-19 Period, except where the layoff was due to a permanent cessation of all of the employer’s business, and provided protection from constructive dismissal claims under the ESA during the COVID-19 Period. In doing so, Regulation 228 provided considerable relief to employers and offered flexibility in navigating COVID-19 issues.

Regulation 228 defined the COVID-19 Period as commencing on March 1, 2020 and ending six weeks after the Emergency Declaration has ended: namely, September 4, 2020.  After September 4, such employees will no longer be deemed to be on IDE Leave. Because of this, an employer will now have to decide whether to:

  • recall employees and decide whether or not to access the Canada Emergency Wage Subsidy program (CEWS)

  • place employees on temporary layoff under the ESA (although the potential issue of constructive dismissal might remain at common law absent a contractual provision allowing for layoff)

  • recognize that an employee is eligible (if qualifying conditions are met) for ongoing IDE Leave (or any other applicable ESA leave or a leave under company policy or an employment contract).

Because IDE Leave is a statutorily protected leave under the ESA, an employee is entitled to reinstatement to the same position upon completion of the leave or to a comparable position (assuming that either position is available).

If an employer chooses temporary layoff under the ESA, then the clock will start ticking on deemed termination of employment. Under the ESA, the maximum length of a statutory temporary layoff is limited to a number of weeks (either 13 weeks in any period of 20 consecutive weeks, or up to 35 weeks in any period of 52 consecutive weeks if certain conditions are met (e.g., continuation of coverage under a benefit plan)). The employee’s employment will be deemed to be terminated if either limit is exceeded, triggering applicable notice and severance pay obligations. For any employee who was laid off prior to March 1, 2020, that period of layoff prior to March 1 will count in the calculation of time under the 35-week approach.

Once an employer decides how to manage its workforce in light of Bill 195, it needs to consider appropriate communications with employees.

What Does It Really Mean? 

In light of the pending September 4 deadline, employers will have to consider carefully their available options with respect to employees who are not currently working. Employers are encouraged to seek legal guidance with respect to their specific circumstances regarding this transition period, especially if unable to resume full and regular operations after September 4 via a recall of employees.

Credit

Sari Springer, Barry Kuretzky, George Vassos and Monty Verlint, via Lexology on August 21, 2020

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WORKING ON THAT COVID 15 (POUNDS)? THE NEW RULES FOR WORKING OUT IN A GYM OR SPORTS/RECREATIONAL FACILITY. WHAT YOU NEED TO KNOW TODAY FOR WORKING OUT AND GETTING BACK INTO SHAPE IN A GYM.

Need to start working on that COVID 15 (pounds)?

Here are the new rules for when you go to your gym or fitness centre, during this Phase 3 of re-opening. 

Some restrictions are eased, but others continue.

What you need to know today about working out at your gym or other fitness facility.

Precautions still required

The new changes still require:

  • two metres distance be maintained between those in the gym;

  • any equipment that is provided for the use by users of the facility must be cleaned and disinfected between each use;

  • Activities where fixed structures cannot be cleaned and disinfected between each users cannot take place;

  • All facilities must follow applicable worker health and safety requirements as outlined in the Occupational Health and Safety Act in addition to any applicable municipal bylaws.

Best practices

A new guide has been launched by the province for sports and recreational fitness facilities. It recommends, amongst other precautions:

  • Proper signage to remind the users of proper hand hygiene and health etiquette;

  • Providing alcohol-based hand rub;

  • Removing all equipment that cannot easily be cleaned or disinfected;

  • Encouraging patrons to bring their own equipment, and limiting the sharing of equipment;

  • Increasing cleaning frequency;

  • Cleaning equipment between each users;

  • Decreasing touch points (such as keys, lockers, etc…)

  • Ensuring physical distancing; Consider putting signs and cues up or on the floor, and consider increasing distance for high intensity exercise with rapid inhalation and deep exhalation (such as … AGM and board meetings?);

  • Implementing staggered schedules, considering online booking, blocking time to clean the facilities;

  • Improving ventilation systems and avoiding air recirculation.

Screen your users!

Screening your users is still key:

  • Implement active screening of your users;

  • Consider using Ontario’s Covid Self-assessment tool;

  • Consider online screening prior to the user’s arrival on site;

  • Those who present symptoms or risks should not be allowed to use the gym;

  • Keep record of all individuals (including names, contact information, dates and times) who enter your facility.

Consider implementing an online screening and booking process for your users ahead of their arrival and keep track of your users!

Corporations can continue to apply their own protocols

With these changes, the Ontario government also reminds everyone that:

businesses, not-for-profits, and municipalities may need or choose to take more time before implementing this change in capacity limits; and  

any facility may also adopt their own protocols that are more restrictive than the guidance.

 

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CKL EMPLOYERS - SEP. 4 IS NIGH - WILL YOU SUFFER THE SLINGS AND ARROWS OF OUTRAGEOUS FORTUNE? THE LOOMING CHOICE OF LAY-OFF OR RECALL. WHAT YOU NEED TO KNOW.

In Ontario, temporary lay offs generally may be up to thirteen weeks, under the Employment Standards Act, 2000 (Ontario) (“ESA”). If the person is not recalled, the employer faces risk that the employee would be deemed terminated under the ESA, even if both the employer and the employee wish to continue the employment relationship.

During COVID’s special circumstances, the Government of Ontario issued Ontario Regulation 228/20 – Infectious Disease Emergency Leave (the “Regulation”), which provides that any non-unionized employee who:

  1. had their hours of work temporarily reduced or eliminated by their employer for reasons related to COVID-19, and

  2. is not performing the duties of his or her position as a result,

is deemed to be on Infectious Disease Emergency Leave during the “COVID-19 Period”, which is retroactive to March 1, 2020, and ends six weeks following the end of Ontario’s provincial declaration of emergency.

Ontario’s provincial declaration of emergency ended on July 24, 2020. This means that the “COVID-19 Period” is set to end on September 4, 2020.

So, as of September, absent further government intervention, many employees will return full circle - facing the risk of deemed terminations under the ESA. They need to decide whether to place employees on temporary layoff or to reduce hours of work or pay. This is especially so for those employers who are unable to bring back employees at the end of the COVID-19 Period..

What is a Temporary Layoff?

  • generally, a layoff is a period when an employer ceases to provide work and (in most cases) compensation to an employee temporarily

  • where permitted, the parties treat the employment relationship as ongoing, despite this interruption of work and/or compensation, with the understanding that work and compensation may resume in the future

  • in Ontario, a layoff week is a week where the employee earns less than one half of the amount that they would earn at their regular rate in a regular week or their average earnings for the period of 12 consecutive weeks prior to the layoff period

  • the Canada Labour Code, which applies to federally regulated employers, allows a temporary layoff of 3 months or less, subject to certain exceptions listed below

How Long can a Temporary Layoff Last?

  • temporary layoffs are just that – temporary - if they exceed the statutory limit, then an employer will generally be deemed to have terminated an employee’s employment unless an exception applies. Key statutory time limits are as follows:

    • temporary layoffs cannot exceed: (a) 13 weeks in any period of 20 consecutive weeks; or (b) more than 13 weeks in any period of 20 consecutive weeks but less than 35 weeks in any period of 52 weeks where:

      • the employee continues to receive substantial payments from the employer, or

      • the employer continues to make payments for benefits or a legitimate retirement or pension plan, or

      • the employee receives supplementary unemployment benefits, or

      • the employee would be entitled to supplementary unemployment benefits but isn’t receiving them because they are employed elsewhere, or

      • the employer recalls the employee within a time frame approved by the Director of Employment Standards or as set out in an agreement with an employee not represented by a trade union, or where the employee is represented, as set out in an agreement with the trade union.

    • federally under the Canada Labour Code, a temporary layoff is:

      • a layoff of 3 months or less, or

      • a period of more than 3 months and:

      • the employer notifies its employees before the layoff that they will be recalled on a fixed date, which is not longer than 6 months, and the employees are recalled on that date;

      • the employee continues to receive payments during the term of the layoff from their employer in an amount agreed on by the employee and their employer; 

      • the employer continues to make payments for the benefit of the employee to a pension plan that is registered under the Pension Benefits Standards Act, 1985, or under a group or employee insurance plan; 

      • the employee receives supplementary unemployment benefits; or 

      • the employee would be entitled to supplementary unemployment benefits but is disqualified from receiving them pursuant to the Employment Insurance Act.under the Canada Labour Code, any periods of re-employment that are less than two weeks in duration are not included in calculating the length of the layoff. Layoffs under a collective agreement where the employee retains a right of recall are also permissible layoff

Is Advance Notice Required? 

  • there are no advance statutory notice requirements before an employee can be placed on a temporary layoff in Ontario  

  • while notice of a temporary layoff is not required under the Canada Labour Code, a temporary layoff may be more than 3 months if the employer notifies its employees before the layoff that they will be recalled on a fixed date, which is not longer than 6 months, and the employees are recalled on that date 

Do Employers Pay Employees while on Temporary Layoff?

  • subject to an employment agreement, policy or collective agreement that says otherwise, layoff periods are generally unpaid. However, employees may qualify for Employment Insurance under new eligibility criteria implemented by the Federal Government for COVID-19 situations

  • employees may also, on a voluntary basis, use their vacation time during a period of a temporary layoff to continue to receive pay

Are Employers Required to Continue Benefit or Pension Contributions During a Layoff?

  • this depends on the terms of employment, including applicable employment contracts, collective agreements, employer policies and third-party plans. In most cases though, absent contractual terms to the contrary, employers are not required by statute to continue benefits or pension plan contributions during temporary layoffs

  • the allotted time for a temporary layoff may be extended if the employer makes benefits and pension contributions to the laid-off employees

  • the employee must agree to these payments in lieu of a firm limit on the length of the layoff

  • where an employment agreement, workplace policy or collective agreement provides for a greater right to benefit or pension continuance, those contractual terms will prevail.

Do Obligations Change Depending on How Many Employees are Temporarily Laid Off?

  • where an employer lays off multiple employees in a short period of time, the employer should be aware of applicable statutory group/mass termination obligations

  • whether these obligations are triggered will be a jurisdiction-specific inquiry. In Ontario there are no mass or group termination considerations for temporary layoffs, however, should the layoffs extend beyond the allotted time mass termination entitlements may apply.

  • these obligations may include providing written notice of the layoffs to an applicable government authority and to the employees in accordance with applicable employment standards legislation. Further obligations may ensue if the layoffs are considered terminations.

What Else Should Employers Know?

  • related layoffs should be temporary. If an employee is laid off for a period longer than the time permitted by statute for the temporary layoff, the employer may be considered to have terminated the employee’s employment and termination obligations, including full severance obligations, will apply

  • employers are encouraged to provide timely, transparent and ongoing communications to their employees in respect of any temporary layoffs, including with respect to any anticipated recall dates or extensions to the layoff period. To that end, employers will want to ensure that they have up to date contact information for each affected employee so that communications are effective

  • a Record of Employment must be issued for each of the employees that are on a temporary layoff

  • a layoff, even if intended to be temporary, may result in the risk of constructive dismissal claims or grievances where temporary layoffs are not otherwise expressly permitted by contract or collective agreement.

 

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ANSWERS TO YOUR TOP 20 QUESTIONS ABOUT POWERS OF ATTORNEY - POAs EXPLAINED FOR NON-LAWYERS.

1.What is a Power of Attorney?

A Power of Attorney is a legal document that gives someone else the right to make decisions on your behalf.

2. Are there different kinds of Power of Attorney?

Yes. In Ontario there are three kinds of Power of Attorney:

 A Continuing Power of Attorney for Property (CPOA) covers your financial affairs and allows the person you name to make decisions for you even if you become mentally incapable.

A non-continuing Power of Attorney for Property covers your financial affairs but can’t be used if you become mentally incapable. You might give this Power of Attorney, for example, if you need someone to look after your financial transactions while you’re away from home for an extended period of time.

A Power of Attorney for Personal Care (POAPC) covers your personal decisions, such as housing and health care.

3. Does the law require everyone to have a Power of Attorney?

No. Making a Power of Attorney is voluntary. No one can be forced to make one.

4. What does the term “attorney” mean?

The term “attorney” refers to the person or persons you have chosen to act on your behalf. The person does not have to be a lawyer. 3

5. What does the term “mentally incapable” mean?

It means different things for different types of decisions and actions. For example, the level of mental capacity a person needs in order to make a valid power of attorney is different from the capacity needed to make personal care or financial decisions. The definitions are provided below under the topic headings.

6. Can I express my wishes in advance?

Ontario laws recognize that your known wishes expressed while mentally capable about your future care choices, will be binding on your attorney or other substitute decision-makers, unless they are impossible to follow. Ontario law does not use the term “living will’. Sometimes people use the term “advance directive” to refer to a written statement of wishes about future care.

7. Is an “advance directive” the same thing as a “Power of Attorney”?

No. A Power of Attorney is a legal document in which you name a specific person to make decisions on your behalf. You can, however, write your treatment wishes (an “advance directive”) as part of your Power of Attorney for Personal Care so that you can be sure your attorney is aware of them. An “advance directive” just addresses your treatment and personal care wishes and does not need to name anyone or be written in any specific way.

8. Is a Power of Attorney the same thing as a “Last Will and Testament”?

No. Your Last Will and Testament covers the distribution of your property after you die and only takes effect upon your death. A Power of Attorney only applies while you are alive and ceases to be effective upon your death.

9. Do I have to register my Power of Attorney with the government?

No. There is no requirement that these documents be registered. The government does not keep a registry. It makes sense, however, to make sure that the people in your life who need to know about these documents – especially your attorney – have a copy or know where to get one if needed.

10. Is a Power of Attorney effective outside of Ontario?

It depends on the law of the particular place where you want to use the Power of Attorney. If you are going to move, or be out of the province for some time, you may want to check with a local lawyer to see if you need to make new documents. 4

11. If I don’t make a Power of Attorney, will the government automatically step in if I can’t manage my own affairs?

No. In these circumstances a family member has the right to make your health care decisions or apply to become your “guardian” of property. Alternatively, someone else – such as a close friend - could apply to make decisions for you in these matters. The government, through the Office of the Public Guardian and Trustee (OPGT), acts only in situations where it is legally required and where no other suitable person is available, able and willing. For more information about applications for guardianship please see the brochure entitled “Becoming a Guardian of Property”.

12. Do I have to use a lawyer to make my Powers of Attorney?

The law does not require you to use a lawyer’s services. However, you may wish to consider hiring a lawyer, especially if your affairs are complicated.

13. Where can I get Power of Attorney forms?

Your lawyer can draft Powers of Attorney for you. Alternatively, some bookstores sell forms and there are also some forms on the Internet. The OPGT provides forms for both Power of Attorney for Property and Personal care. You may request these by calling Service Ontario at 416-326-1234 or toll free at 1-800-267-8097. Forms can also be requested from the OPGT by calling 416-314-2800 or toll-free at 1-800-366-0335 or TTY: 416-314-2687. Access them on-line at http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/poa.pdf Obtaining legal advice in creating these documents is something you should seriously consider. Note: The Ontario Government’s 1994 Power of Attorney Kit is still valid for use today.

14. Does the government also provide a “Will Kit” or similar forms that I can use to make my Last Will and Testament?

No. It is difficult to make one form that would adequately cover the many diverse situations that people may want to reflect in their Wills and provide all the information that people need to plan properly. We recommend that you hire a lawyer to assist you in making your Will.

15. Is my Power of Attorney valid?

f the document is properly completed, signed and witnessed, and you had the legal capacity to give the POA there are no further steps that need to be taken in order for it to be legally binding. Please note the POA must be witnessed by two individuals who are eligible to serve as a witness. Some people, for example, your spouse and children, are not allowed to serve as a witness to you signing the POA. Please see the OPGT’s POA Kit for complete instructions. You may also wish to obtain legal advice. Neither the Attorney General’s office nor the Office of the Public Guardian and Trustee keep a record of Power of Attorney documents, so there is no need to submit one in order for it to be legally binding. It is also not necessary to have a lawyer review the documents, although this may be helpful to ensure they are executed properly. While not required under the Substitute Decisions Act, 1992, a person being asked to recognize a Power of Attorney may require a notarized copy of, or the opportunity to see the original Power of Attorney, before dealing with an attorney in place of the grantor. This requirement provides additional assurance that the attorney has authority. Requiring the attorney to produce the original for inspection or provide a notarized copy helps establish that the original document is still in existence and is in the attorney’s possession. As well, if a notarized copy is produced, it reduces the risk of potential fraud as the notary is required to compare the original Power of Attorney to the copy prior to notarizing the copy.

16. If a witness to a Power of Attorney dies, does the Power of Attorney become invalid?

No. The subsequent death of a witness does not affect the validity of the Power of Attorney.

17. If there is more than one Power of Attorney, which one is valid?

Only the most recent Power of Attorney is valid unless you state, in that document, that you intend to have more than one Power of Attorney.

18. I am an attorney named in a Power of Attorney. What if someone refuses to accept the Power of Attorney?

It may have been that, despite the grantor’s best intentions, the document was not executed properly. For instance, although it is signed and witnessed, it may be that one of the witness signatures is not valid owing to the witness’s relationship to the grantor or because the witness is also the appointed attorney. It is also possible that the grantor lacked the required mental capacity to make a POA. 6 If the POA is executed properly, there may be some policy reason that an institution (e.g. bank) in Ontario has not accepted it. In order to protect from fraud, many institutions establish policies around the acceptance of POAs. You should discuss this with them. You may need to seek legal advice if the POA appears to be validly made and the institution still refuses to honour it. Please Note: Powers of Attorney are governed provincially, rather than federally, so each province has its own requirements. If you are trying to use a POA from Ontario, in another province, you may run into difficulty. However, it may be possible to have the POA validated by another province; you should seek legal advice with respect to this issue.

19. Can a Power of Attorney be challenged?

Yes, but only a court has the final say.

20. Will the OPGT agree to be appointed in a Power of Attorney?

The OPGT rarely consents to act under a Power of Attorney. The OPGT’s mandate is to make decisions as guardian for mentally incapable adults who have no one else available, willing and suitable to make decisions on their behalf.

Credit: attorneygeneral.jus.gov.on.ca

 

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TAKE THE 30 X 30 CHALLENGE IN AUGUST - 30 MIN A DAY OUTSIDE IN NATURE FOR 30 DAYS - SPONSORED BY ONTARIO PARKS

If you are looking for great reason to get outside, you can take up the annual Ontario Parks 30x30 Challenge.

It is part of our government's Healthy Parks Healthy People initiative and runs for the month of August.

To meet the 30x30 Challenge, participants must spend 30 minutes outside in nature each day for 30 days.

The 30x30 challenge can be a fun way to kickstart healthy new habits or renew old ones and take advantage of the life-long benefits. Spending time in nature can have a profound impact on our health and well-being, improve our overall mood, boost our immune system and reduce stress. There are countless ways to participate, from going on a bike ride, taking a long walk, or enjoying a provincial park or another greenspace near you.

Although we are encouraging people to be more active, it's important to remember we must continue to be responsible and follow public health advice, including practicing physical distancing whether inside or out, wearing a face covering when physical distancing is a challenge or where it is required, washing your hands frequently and avoiding large gatherings."

Additional Resources

  • Use the Ontario Parks locator tool to find a provincial park near you.

  • More ideas on what to do for the 30x30 Challenge can be found on the Ontario Parks Blog and YouTube channel.

  • As part of Ontario’s Healthy Parks Healthy People strategy, Ontario recently consulted people and organizations across the province to help us develop more effective programs, policies and partnerships to improve access to the health benefits of provincial parks and green spaces. Read a summary of what we heard.

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CKL FARMERS - MORE MONEY FOR LIVESTOCK WELL BEING STUDY AND NEW PROGRAMS. TODAY'S UPDATE.....

The Ontario Government is investing $2.35 million in advanced animal research related to livestock health and well-being while also focusing on increasing productivity and competitiveness in the livestock sector.

The findings will provide farmers with the latest knowledge and on-farm solutions for safely managing livestock so they can continue to be world leaders in the agriculture sector.

This research is funded through the Ontario Agri-Food Innovation Alliance, a collaboration between the Ontario government and the University of Guelph to support growth and innovation in the province's agri-food and rural sectors.

Through the Ontario Agri-Food Innovation Alliance, the Province is funding livestock research projects to investigate innovative methods, practices and products that will help the sector better understand and support livestock health and welfare, including:

  • Identifying genetic markers to reduce disease and infections in sheep and cows

  • Improving access to veterinary services and support in rural and remote areas

  • Developing a surveillance program for milk tanks on dairy farms

  • Examining newborn milk in the development of neonatal dairy calves

  • Evaluating novel methods to prevent bovine respiratory disease

  • Identifying disease-causing pathogens in sheep and goats

  • Validating the use of probiotics to support the health of multiple livestock species

  • Investigating alternative control measures for E. coli diarrhea in pigs

All projects are designed to ensure Ontario's agri-food sector can quickly benefit from the new knowledge, technologies and solutions developed through provincially funded research.

Quick Facts

  • The $2.35 million earmarked for new livestock health, welfare and productivity projects is part of the province’s Ontario Agri-Food Innovation Alliance annual investment of $8.65 million, which supports research at the University of Guelph. The Alliance funds research in areas of environmental sustainability, animal and plant health and production, as well as agri-food and bio-product development.

  • Ontario’s livestock sector (beef, hog, sheep, dairy, poultry and egg) contributes approximately $16.4 billion to the GDP and supports more than 323,000 direct jobs.

Additional Resources

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CKL BUSINESSES AND ORGS - COMMERCIAL RENT ASSISTANCE EXTENDED TO AUGUST, 2020 - MUST RE-APPLY BY SEP. 14. WHAT YOU NEED TO KNOW TODAY......

On July 31, the Ontario government, in partnership with the federal government, extended the Canada Emergency Commercial Rent Assistance (CECRA) for small businesses by one month to help eligible small business pay rent for August.

To find out how much rent support you may be eligible for, visit Ontario.ca/rentassistance.

To learn more and apply for the CECRA for small businesses, visit the Canada Mortgage and Housing Corporation's (CMHC) application portal.

More Facts About the CECRA

  • The province committed $241 million to the program, which would provide more than $900 million in support for small businesses across Ontario during this difficult time.

  • The CECRA for small businesses is administered by the CMHC. Support covers April, May, June, July and August 2020. Existing applicants need to reapply for the month of August and have until September 14, 2020 to do so. New applicants have the choice of applying for the three-month initial period, four months or five months, but need to do so by the original date of August 31, 2020.

  • The CECRA for small businesses has been developed to share the cost of rent between small business tenants, landlords and the governments of Ontario and Canada. Small business landlords would be asked to forgive at least 25 per cent of the tenant's total rent, tenants would be asked to pay up to 25 per cent of rent and the provincial and federal government would share the cost of the remaining 50 per cent.

  • Partnering with the federal government to deliver rent assistance builds on the government’s actions to support small businesses during COVID-19. As part of Ontario’s Action Plan: Responding to COVID-19, the first phase of the government’s response, the province has implemented $10 billion in cash flow supports to help support jobs and businesses through tax and other deferrals.

Additional Resources

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YOU CAN DOWNLOAD THE NEW COVID APP AS OF TODAY - HOW TO DO IT - TIPS ON USE - THE MORE WHO DOWNLOAD, THE BETTER IT WORKS. WHAT YOU NEED TO KNOW TODAY.........

The Ontario government is encouraging everyone to download the new COVID Alert app on their smart phone from the Apple and Google Play app stores.

This app, which is available beginning today, lets users know if they may have been exposed to the virus.

It is free, easy and safe to use.

The more people who download the app, the more effective it will be in stopping the spread of COVID-19.

The COVID Alert app uses Bluetooth technology to detect when users are near each other. If a user tests positive for COVID-19, they can choose to let other users know without sharing any personal information. Ontarians who receive an exposure alert can then get tested and take action to help keep themselves, their families, and their friends from spreading COVID-19 throughout the community.

The app does not collect personal information or health data, and does not know or track the location, name, address, or contacts of any user.

COVID Alert is a key tool to strengthen Ontario's comprehensive case and contact management strategy, Protecting Ontarians through Enhanced Case and Contact Management. The app supports the efforts of public health units, allowing the province to quickly test, trace and isolate cases of COVID-19 to stop the spread of the virus and prepare for any potential outbreaks ― without sharing any personal information.

If an app user receives a message from COVID Alert that they may have been exposed to the virus, they should follow the public health advice given on the app and get tested. To notify other people if an app user has tested positive for COVID-19, they can enter their one-time key from Ontario's test results website (Ontario.ca/covidresults) into the app. A message will then be sent to other app users who have been within two metres of them for at least 15 minutes within the past 14 days, without sending any information that identifies the user, or the time and place of exposure.

To stay safe as more of the province reopens, Ontarians should continue to follow public health guidelines including physical distancing with people not in their social circle, wearing a face covering if physical distancing is a challenge, washing hands thoroughly and frequently, and if anyone thinks they have COVID-19 or have been in contact with someone who has COVID-19, get tested.

Quick Facts

  • COVID Alert is available for free use and download from the Apple and Google Play app stores.

  • All aspects of COVID Alert are completely voluntary. Ontarians can choose whether to download the app, whether to use the app after downloading it, and whether to notify others if they test positive for COVID-19.

  • COVID Alert does not collect any personal information, health information, or location data. It uses Bluetooth technology to send out encrypted codes to other nearby app users and was built using the Apple/Google framework for exposure notification to ensure that it leverages global best practices to protect privacy.

  • COVID Alert is a Digital First Smart Initiative, one of many cross-government projects that focus on better outcomes and improving the customer experience.

  • The Government of Canada is also working with the other provinces and territories to get their jurisdictions on board with the app in the coming weeks and months.

  • In addition to his responsibilities as President of the Treasury Board, Minister Peter Bethlenfalvy is now overseeing Ontario’s efforts to lead digital and data transformation for the people of Ontario, including oversight of the Ontario Digital Service.

Additional Resources

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CKL COMMERCIAL LANDLORDS - DISTRAINT OR TERMINATE, BUT NOT BOTH - IT'S ILLEGAL

Many commercial landlords do not realize – if you are owned rent by your tenant, you must choose between locking the doors/distraining and termination of the lease. You cannot do both.

You must choose: either distraint or terminate and sue for unpaid rent.

In this case, the plaintiff tenant and defendant WM and Buckingham (landlord) entered into lease for commercial premises.

The tenant intended to completely renovate the unit and open a Mediterranean-style restaurant.

The tenant also paid landlord $16,950 for purchase of its restaurant business, equipment, and chattels left in leased premises. Upon taking possession, the tenant discovered numerous pieces of kitchen equipment had to be replaced.

The tenant did not pay rent as a result. The tenant was locked out for arrears of rent after several months. The landlord distrained the tenant's chattels, changed the locks, and terminated the lease.

The tenant’s action for damages for illegal distraint and improper termination of the commercial lease was allowed in part while landlord counterclaimed for arrears of rent.

The trial judge found the lease termination was proper but that the landlord had illegally distrained the tenant’s chattels.

The trial judge awarded the plaintiff $58,190.74 in damages for conversion and $10,000 in punitive damages, which were offset by damages of $1,294 for unpaid rent awarded to the defendant on its counterclaim.

In addition, trial judge found that WM was jointly and severally liable for these damages with Buckingham.

The landlord appealed. The appeal was allowed in part. The trial judge did not err in holding illegal distraint. The landlord had to choose between mutually exclusive remedies of termination and distress. Instead of making the choice, it attempted to do both and, therefore, distraint was illegal.

Pita Royale Inc. (Aroma Taste of the Middle East) v. Buckingham Properties Inc. (2019), 2019 CarswellOnt 8106, 2019 ONCA 439, C.W. Hourigan J.A., M.L. Benotto J.A., and Grant Huscroft J.A. (Ont. C.A.); varied (2017), 2017 CarswellOnt 20043, 2017 ONSC 5976, Carole J. Brown J. (Ont. S.C.J.).

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CKL TENANTS BEWARE! LANDLORDS CAN NOW GET EVICTION ORDERS WITHOUT PRIOR NOTICE TO YOU. WHAT YOU NEED TO KNOW TODAY.............

New Ontario legislation now allows ex parte (i.e., without any notice) eviction orders, allowing landlords to obtain an eviction order without appearing before the Landlord and Tenant Board (the “LTB”).

Firstly, with Bill 184, the Protecting Tenants and Strengthening Community Housing Act, when a tenant is behind on rent, they can now enter into an enforceable repayment agreement with their landlord without oversight from an LTB adjudicator.

If the tenant fails to meet the repayment agreement’s terms, they can be subject to an ex parte eviction, or eviction without a hearing.

This is entirely new, as previously no eviction could be ordered by the LTB without the tenant being properly notified in advance.  

How does a landlord now do this?

The landlord must initially serve the tenant a Form N4 Notice to End a Tenancy Early for Non-payment of Rent, file a Form L1 Application to Evict a Tenant for Non-payment of Rent with the LTB, fill out another LTB form, which becomes the repayment agreement, following which both parties wait to receive the consent order from the board on that agreement.

However, if the tenant breaches the agreement, the landlord can then file an L4 application for eviction and does not have to serve notice to the tenant, nor have a hearing with the LTB.

The tenant has 10 days to file a set aside motion, to appear before the LTB to address the breach.

The tenant can also file a request to review the eviction order until 30 days post-eviction order.

Effectively, the new legislation shifts the onus to the tenant to prove why they did not uphold the agreement, while at a typical non-payment of rent hearing, the landlord has the onus to prove rent was not paid, to which the LTB applies an “equity reasoning”, determining whether there are circumstances that may justify delaying or refusing the eviction.

Some say that this new legislation further tips the scales of the power imbalance in favour of the landlord, namely by removing an opportunity for tenants to access much-needed assistance and protection at the LTD.

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NEW COVID ALERT APP NOW AVAILABLE - CKL BEING USED AS A TRIAL BEFORE NATIONAL ROLL-OUT. WHAT YOU NEED TO KNOW TODAY ABOUT THE APP............

The new, federally-developed COVID Alert app is now available in the City of Kawartha Lakes and aims to help stop the spread of the novel coronavirus.

The voluntary app tells users if or when they have been in close contact with another user who has tested positivie for the COVID-19 virus.

It uses Bluetooth technology, and if someone does get a positive test, they have to enter a code for alerts to be sent to other users.

The app is not mandatory for Canadians, and can be downloaded voluntarily from Google’s Play Store and Apple’s App Store.

Officials have stressed that no personal data will be collected.

Ontario is being used as a trial bed before a nationwide roll-out

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NEW RULES FOR CKL BARS AND RESTAURANTS - WHAT YOU NEED TO KNOW TODAY.......

The Ontario government, in consultation with the Associate Chief Medical Officer of Health, has amended orders O. Reg 364/20: Rules for Areas in Stage 3 and O. Reg. 263/20: Rules for Areas in Stage 2, under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, implementing additional measures for restaurants, bars, and other food or drink establishments, as the province carefully and gradually reopens.

In order to keep patrons of restaurants, bars, and other food or drink establishments safe, the amended orders will implement the following measures:  

  • All patrons will be required to be seated at all times, in both indoor and outdoor areas, with limited exceptions; and

  • Bars and restaurants (and also tour boat operators) in Ontario will be required to keep client logs for a period of 30 days and to disclose the client logs to the medical officer of health or an inspector under the Health Protection and Promotion Act on request, which will support case and contact tracing.

  • Complementary changes are being made in respect of existing provisions relating to tour operators and tour boat operators.

The Chief Medical Officer of Health and other public health experts continue to closely monitor the evolving situation to advise when public health measures or restrictions can be further loosened or if they need to be tightened.

It remains critically important for everyone to continue following public health advice as more businesses and services reopen in Stage 3. This includes practising physical distancing with those outside your household or social circle, wearing a face covering when physical distancing is a challenge or where it is mandatory to do so, staying home when ill, and washing your hands frequently and thoroughly.

The amendments read:

SCHEDULE 2
SPECIFIC RULES

Food and drink

Restaurants, bars etc.

1. (1) Restaurants, bars, food trucks, concession stands and other food or drink establishments may open if they comply with the following conditions:

1.  No buffet-style service may be provided.

2.  Patrons must be seated when eating or drinking at the establishment.

Note: On July 31, 2020, paragraph 2 of subsection 1 (1) of Schedule 2 to the Regulation is revoked and the following substituted: (See: O. Reg. 428/20, s. 3 (1))

2.  Patrons must be seated at all times in any area of the establishment in which food or drink is permitted except,

i.  while entering the area and while moving to their table,

ii.  while placing or picking up an order,

iii.  while paying for an order,

iv.  while exiting the area,

v.  while going to or returning from a washroom,

vi.  while lining up to do anything described in subparagraphs i to v, or

vii.  where necessary for the purposes of health and safety.

3.  The establishment must be configured so that patrons seated at different tables are separated by,

i.  a distance of at least two metres, or

ii.  plexiglass or some other impermeable barrier.

4.  No person shall dance, sing or perform music at the establishment except in accordance with subsection (2) or (3).

Note: On August 7, 2020, subsection 1 (1) of Schedule 2 to the Regulation is amended by adding the following paragraph: (See: O. Reg. 428/20, s. 3 (2))

5.  The person responsible for the establishment must,

i.  record the name and contact information of every patron who enters an indoor or outdoor dining area in the establishment, other than patrons who temporarily enter the area to place, pick up or pay for a takeout order,

ii.  maintain the records for a period of at least one month, and

iii.  only disclose the records to a medical officer of health or an inspector under the Health Protection and Promotion Act on request for a purpose specified in section 2 of that Act or as otherwise required by law.

Quick Facts

  • Businesses and sectors unable to open or facing significant difficulties in operating under the current restrictions are invited to visit Ontario.ca/reopen to submit a reopening proposal. Businesses are also encouraged to use the government’s guide to develop a workplace safety plan. Government officials will work collaboratively with them on a plan to safely reopen, where feasible. The plan will be considered by public health officials and the Ontario Jobs and Recovery Committee as part of Ontario’s approach to Stage 3.

  • Some local municipalities may have enacted by-laws or local medical officers of health may have issued Section 22 orders under the Health Protection and Promotion Act, mandating the use of face coverings, and other restrictions, in some settings. Other medical officers of health may have mandated the use of face coverings, and other restrictions, through reference to emergency orders. Refer to local municipal or public health unit webpages for more information.

  • For questions on restrictions that will remain in place during Stage 3, review the Stage 3 Emergency Order on the emergency information portal or call the Stop the Spread Business Information Line at 1 888 444-3659.

  • Over 180 guidance resources are available to businesses to help them safely reopen and keep customers and workers safe.

  • The province has set up a Workplace PPE Supplier Directory, where employers can find suppliers who sell personal protective equipment (PPE) and other supplies to support a safe reopening of their workplaces.

  • Testing is available at any of the province’s 144 assessment centres currently open. To find your closest assessment centre, please visit Ontario.ca/coronavirus.

  • The province has developed a practical step-by-step guide to help Ontarians as they safely develop and join a social circle.

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CAN YOU STILL REFUSE TO WORK DUE TO CHILD CARE AS OF SEPTEMBER 1, WHEN CHILD CARE SERVICES RE-OPEN. NO. THE END IS NIGH. WHAT YOU NEED TO KNOW TODAY.........

Child care services and centres will be fully operational again as of September 1. 

More information on this is available here: http://wardlegal.ca/31596034289334 

So, things will soon change for parents who do not attend work due to child care responsibilities - in fact, that ability will end as of September 1.  

As workplaces re-open, employers are getting all kinds of objections from employees about coming back to work. Common among these are childcare responsibilities. While some daycares and day camps are operating, things are far from normal. What obligation do employers have to accommodate refusals to come back to work due to childcare responsibilities?

Employee Protection Under the Infectious Disease Emergency Leave

In Ontario, employees who claim they cannot work due to childcare responsibilities may have job protection under the Infectious Disease Emergency Leave (IDEL). The IDEL provides job protection to employees who need to take a leave from work to care for their children whose school or daycare is closed because of COVID-19. The Ministry of Labour Guide on this leave also includes day camps being cancelled as a reason for the leave so we can be sure that the protection is meant to be expansive.

If an employee’s normal childcare arrangements are a no-go because of COVID-19 they will be entitled to this leave. The IDEL requires the employer to give the employee a leave of absence, to continue their benefits and to reinstate the employee when they return from the leave to their job or a comparable job if their job no longer exists. The employer does not have to pay the employee during the leave.

The IDEL can also be taken in different ways, including partial days. This essentially allows an employee to have flexible work. If an employee is able to have their child cared for by a relative for a partial day and can work for a partial day, they have the protection of the leave for this adjustment to their schedule.

If COVID-19 is no longer deemed to be a designated infectious disease under O. Reg 66/20 then the employee’s right to the leave will end. The employee’s right to the leave will also end if the triggering event ends – for example, the employee’s child’s daycare re-opens.

But Their Daycare IS Open!

If the employee’s regular childcare IS available then they will not have the ability to claim protection under the IDEL for this reason. Note that there are other reasons to claim IDEL protection – such as being sick with COVID-19, caring for someone sick with COVID-19 or quarantining after travel or possible exposure to COVID-19 – and that as an employer you cannot ask the employee for medical evidence to substantiate the reasons for the leave. A request for evidence reasonable in the circumstances is allowed. So, if the employee claims to have been travelling it would be reasonable to require them to prove this by producing a plane ticket, for example.

Back to childcare. If the employee’s regular childcare is available, and they continue to state that they cannot come to work due to childcare responsibilities, then the employer will need to consider whether human rights protection might legitimately be engaged such that the employer needs to accommodate the employee.

There are two lines of jurisprudence that consider the test for family status accommodation. In one, Canada (Attorney General) v. Johnstone, 2014 FCA 110, the employee must show that:

  1. that a child under his or her care and supervision;

  2. that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;

  3. that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and

  4. that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

In the other, Misetich v. Value Village Stores Inc., 2016 HRTO 1229 the individual must show that the employer’s requirement (say, coming to work) results in a “real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship,” and that while each case is contextual the employee may be required to “consideration of the other supports available.”

Regardless of which test is followed – the law is somewhat unsettled on this point – it is clear that the employee needs to consider the options available to him or her and that he or she cannot simply choose not to send the child to daycare out of personal preference. That being said, the situation may be different if there is a great health risk to a family member. This could engage another human right ground! Woohoo!

Takeaways

While we can’t say with certainty how the courts may treat all of the employment issues and scenarios COVID-19 has created, it’s likely that employees cannot simply refuse to work where childcare options are available to them and they wish to stay home – and have their job held for them to come back to – out of personal preference.

Credit: 

Hilary Page, Spring Law (via Lexology.com on July 31, 2020)

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CHILD CARE WILL BE AT 100% AS OF SEP. 1. BUY MORE NON-MEDICAL MASKS.

Today, the Ontario government announced its plan to allow licensed child care centres across Ontario to open at full capacity starting September 1, 2020.

EarlyON Child and Family Centres will also be permitted to reopen with in-person programming along with before- and after-school programs for school aged children which will be permitted to operate with standard ratios and maximum group size requirements.

All of these programs will be subject to health and safety protocols in order to keep kids safe.

The Ministry of Education will continue to work closely with municipal service managers, First Nations, and childcare operators to maximize capacity and access for families over the coming weeks. This includes revised health and safety operational guidance, additional funding parameters, and direction on providing notice to parents for placements. Licensees will continue to be required to maintain ratios and group sizes as set out under the Child Care and Early Years Act, 2014 (CCEYA).

The government will continue to follow the advice of the Chief Medical Officer of Health and the COVID-19 Command Table to ensure the health and safety of the children and staff is never compromised as childcare capacity expands to 100%. The enhanced health and safety procedures that were put in place as part of the re-opening plan, will remain in place, and in some instances strengthened, to protect children, staff and families, including:

  • Requiring all child care staff to wear masks at all times, effective September 1;

  • Ensuring frequent cleaning of child care centres;

  • Screening of children and staff before entering a childcare facility;

  • Maintaining attendance records for rigorous contact tracing and coordination with local public health authorities;

  • Ensuring frequent hand washing and proper hand hygiene for children and staff; and

  • Establishing clear and rigid case management protocols in the event a staff member or child becomes ill, or tests positive for COVID-19.

Ontario will also provide additional funding, with support from the federal government through the Safe Restart Agreement, to help child care operators and EarlyON Child and Family Centres purchase cleaning supplies, PPE and support staffing needs related to new procedures.

Quick Facts

  • Licensed child care centres will be permitted to operate at full capacity beginning September 1, 2020. More information about reopening protocols and guidelines will be shared in the coming days.

  • Families whose children attended a licensed child care centre immediately before the emergency was declared must be given at least 14 days notice to accept a placement available on or after September 1, 2020.

  • From March 22 – June 26, 2020, the government provided Emergency Child Care to health and front line workers free of charge. On April 10th, 2020, the government committed to protecting parents from financial hardship during COVID-19 by preventing operators from charging fees while child care centres were closed. On May 9th, 2020 the government announced supports to licensed child care providers to ensure they remain sustainable and ready to open when parents return to work. On June 9, 2020, the government announced its plan to reopen child care centres across the province. On June 12, 2020, child care centres were permitted to reopen once strict health and safety measures had been met.

  • Funding is being provided to support enhanced cleaning costs and health and safety requirements set out to support the reopening of child care centres, as well as the continued stabilization of the sector.

  • The government of Ontario will supply face coverings to licensed child care settings and EarlyON locations.

  • There are over 5,500 child care centres and 124 licensed home child care agencies across Ontario.

  • Parents and guardians have until August 31, 2020 to apply for Support for Families. Under this program, parents or guardians of children between 0-12 years old, or up to 21 years old for children and youth with special needs, are eligible for a one-time payment, per child, to purchase educational materials to support learning at home.

  • To date, over 1.6 million families have benefited from the Support for Families program.

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SCHOOL RE-OPENING PLAN FOR SEPTEMBER - A SUMMARY.

In-class instructions at Ontario schools will resume this fall, with additional protective measures put in place to protect against the spread of COVID-19.

Among the plans announced by the Province:

  • Elementary schools (Kindergarten to Grade 8) will reopen provincewide, with in-class instruction five days a week.

  • Secondary schools with lower risk will reopen with a normal daily schedule (five days a week), while most secondary schools will start the school year in an adapted model of part-time attendance with class cohorts of up to 15 students alternating between attending in-person and online.

  • Students from Grade 4-12 and school staff must wear non-medical masks or face coverings. Masks will be optional for students in Kindergarten to Grade 3.

  • Parents will have the option of not sending their children to school, and instead have them enrolled in online learning at home

  • Hiring additional cleaning/custodial staff.

  • Enhanced cleaning/disinfecting of classrooms and schools.

  • Hiring of 500 Public Health Nurses to liaise/assist schools with adjusting to COVID protocols

  • Providing Personal Protective Equipment to teachers and school staff

  • Putting in place COVID-19 screening for students and school staff

For more specifics on school reopenings, click on the following:

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I'M NOT HAPPY WITH THE JUDGMENT - SHOULD I APPEAL IT? WHAT GROUNDS DO I NEED TO APPEAL? WHAT SHOULD I LOOK FOR BEFORE I APPEAL?

So, you endured the litigation process and received a judgment.

But you’re not happy with it, as many experience.

Statistically, most cases are never appealed and those that are face a high hurdle.

However, some succeed, of course, clarifying the law or potentially overturning the decision of the lower, trial Court.

The obvious appeals involve a Judge misinterpreting or misapplying the law – those types of appeals are more straightforward, but also fairly rare.

What about other grounds available to you?

If you think you have been unfairly treated, judicially speaking, here is how you should examine whether you should consider an appeal:

1.Were the parties able to exercise all their procedural rights?

One of the myths of the law is to think that a good lawyer is a cunning person capable of planting annulments at their convenience, throughout the process, which end up defining the trial, in the last moments. Betting on such a strategy may prove unsuccessful. The decisive factor to point out a process as flawed is that one of the parties has really been unable to seize any of its stages.

Did the Judge listen to both parties before adopting a resolution? Did the judge timely notify the start and end of each stage? Was there access to evidence from the opposing party? The central issue is whether one of the parties suffered a defenseless situation. Something important to assess on this point is that the appeal will correct procedural defects. Thus, an appeal that thrives under this argument will guarantee a fair trial, but not win it directly.

2.Did you enter all the necessary evidence to the trial?

Da mihi factum, dabo tibi ius" (give me the facts, I will give you the right) is a phrase that perfectly sums up the work of all the judges around the world. Now, such facts are made available to the Judge based on the evidence that enters the trial as long as they meet certain requirements. It must be related to any of the facts discussed in court, must be sufficient and useful to prove them.

The general rule is that the entry of evidence is allowed and only failure to comply with any of these requirements leads to its rejection. In this sense, it is necessary to attend to two elements that could go unnoticed. First, the interested party must expressly record in the corresponding act the disagreement with the exclusion of evidence. Second, the rejected evidence will be produced at that stage, making it critical to argue how this new element should modify the award.

3.Did the judge do a correct analysis of the evidence?

A judicial process is a search for the truth, under a certain method guided by logic, experience and psychology. Thus, the judicial reasoning expressed in an award should follow objective and verifiable parameters. It is important to know the principles under which the evidence was analyzed and to be clear about what should be considered as accredited according to them, to access a true review of the evidentiary analysis.

The first step to effective persuasion is clarity. Thus, it is essential to identify what is the error in the evidentiary examination and identify which premise (logic, experience or psychology) is the one that was violated when the Judge declared that something was proven (or not). The foregoing provides clarity to the Court of Appeals on the point whose review is requested and, furthermore, demonstrate why the meaning of the award should be modified.

Credit:

Ruben Rivas, Torres Law (via Lexology on July 29, 2020).

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OUR NEW CHILD WELFARE SYSTEM - ON ITS WAY!

The Ontario government released its plan today to modernize the child welfare system. The strategy focuses on strengthening families and communities through prevention, early intervention and seeking more permanent homes for children and youth in care when they cannot stay in their own homes or communities.

The strategy to redesign the child welfare system has five pillars that focus on:

  • Strengthening family well-being through community-based prevention services that keep children safe in family-based settings;

  • Improving the quality of residential care provided to children and youth;

  • Promoting the development of stable and lifelong connections and supports for youth, with a focus on education and employment opportunities;

  • Improving the adoption experience and focusing on family-based options over group care where appropriate; and

  • Creating a more efficient and effective child welfare system that is financially sustainable.

The new child welfare strategy was developed with input from youth, families, caregivers, First Nations, Inuit and Métis partners, lawyers, community organizations, frontline workers and child welfare sector leaders. They participated in over 100 engagement sessions over the past year and provided over 3,000 responses to an online survey.

Quick Facts

  • More than 12,000 children and youth are in the care of children’s aid societies in Ontario. This includes children and youth in kinship care, foster care and group care placements.

  • In addition to children and youth in care, those in need of protection may be placed with a family member or community caregiver, without coming into the care of a society. This is known as kinship service.

  • The Ontario government invested $5 million this year to enhance access to prevention-focused customary care for Indigenous children and youth. Customary care is the culturally-specific care and supervision of a First Nations, Inuit or Métis child by a person who is not the child’s parent. Customary care allows children and youth to remain closely connected to their culture and community.

Background Information

Additional Resources

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AN ISOLATED SEXUAL, INAPPROPRIATE COMMENT TO ME IN THE WORKPLACE. IS IT SEXUAL HARASSMENT? WHAT IS THE TEST? WHEN SHOULD I COMPLAIN?

You and a few co-workers are out to dinner after a lengthy work week.

During the event, your co-worker, who is also more senior than you and managerial, quietly says to you:

“You will have to tell me if this is a misstep, but I’m crazy about you”.

You tell your co-worker this comment is unwelcome and you discuss it briefly.

Your co-worker acknowledges it was inappropriate and expresses regret about making it to you.

Your co-worker makes no further advance and you and your co-worker continue to have a professional relationship, but you remain uncomfortable due to the initial comment.

Is it sexual harassment, contrary to Ontario’s Human Rights Code?

The legal test for sexual harassment is conduct that is of a sexual nature, unwelcome and resulting in adverse consequences for the complainant.

Clearly the comment to you was sexual in nature and unwelcome and, consequently, you were both distressed and uncomfortable.

The real issue is whether the subjective, negative feelings you experienced constitute an “adverse impact” on you or your employ within the meaning of human rights law.

In this case, which actually happened, the comment was not considered sexual harassment.

The Tribunal assessed the circumstances surrounding the comment and found the comment was an isolated incident, not accompanied by any other advances and was not vulgar or crude.

Although there was a power imbalance in the relationship and inherent vulnerability, the dynamics were balanced somewhat by the parties` collaborative professional relationship.

There was no abuse of power. The Tribunal accepted that the employee experienced emotional distress as a result of the comment, but held that all circumstances must be considered on an objective basis. The Tribunal found there had been no adverse effect on their professional working relationship.

The Tribunal noted the complainant’s interpretation of events was coloured in hindsight and emphasised the “large gap between a comment that is inappropriate, and deserving of an apology, and one that is inherently such an affront to the person’s dignity that it rises to the level of sexual harassment as defined by the Code”.

What does this mean?

The circumstances, objectively, will be considered. Not only will the subjective interpretation and interpretation of the recipient be properly reviewed, but all of the circumstances, viewed objectively, will also be considered, particularly where there is a single, isolated incident in the workplace.

In this case, those did not warrant a finding of sexual harassment.

The decision also indicates that appropriate efforts to address the inappropriate comment will be important.

The case:

The Employee v. The University and another (No.2), 2020 BCHRT 12

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WHAT'S HAPPENING WITH THE "STATE OF EMERGENCY" - ARE WE, OR NOT? WHAT'S OUR CURRENT STATUS?

So, what is happening with Ontario’s declaration of emergency for COVID-19?

It’s ended, but the containment rules and directives continue.

The declaration of emergency was made initially under the Emergency Management and Civil Protection Act (“EMCPA”). Recently, the provincial declaration of emergency was extended to July 24, 2020, while existing emergency orders were extended to July 29, 2020. However, recognizing that there will likely be a continued need to manage the public health risks and effects of COVID-19 well beyond the declared emergency, on July 21, 2020, the Ontario government passed Bill 195, now known as the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (the “Act”).

 End of Declared Emergency

The Act provides that the COVID-19 declared emergency is terminated once it comes into force unless the emergency has been terminated beforehand. The Act came into force on July 24, 2020, which coincides with the termination of the state of emergency.

Continuation and Amendment of Emergency Orders

The Act also provides that emergency orders made under section 7.0.2 or 7.1 of the EMCPA that are in force on the date the Act came into force will cease to be orders under the EMCPA but will be continued as valid and effective orders under the new legislation. The orders are continued for an initial period of 30 days, but the Act allows for the extension by the Lieutenant Governor in Council for further periods of no more than 30 days at a time.

Bill 195, as it was passed, does not allow for the creation of new emergency orders under the Act. However, the continued orders may be amended by the Lieutenant Governor in Council, but only if the amendment requires persons to act in compliance with the advice, recommendations or instruction of a public health official and the amendment relates to one of the following subject matters:

  • closing or regulating any place, whether public or private, including any business, office, school, hospital or other establishment or institution;

  • providing for rules or practices related to workplaces or the management of workplaces, or authorizing the person responsible for a workplace to identify staffing priorities or to develop, modify or implement redeployment plans or rules or practices that relate to the workplace or the management of the workplace, including credentialing processes in a health care facility; or

  • prohibiting or regulating gatherings and organized public events.

Bill 195, as it was passed, also provides that some orders cannot be amended, including, for example: Order 210/20 (Management of Long-Term Care Homes in Outbreak), Order 240/20 (Management of Retirement Homes in Outbreak) and Order 241/20 (Special Rules Re Temporary Pandemic Pay).

The Act limits the authority to extend or amend emergency orders continued under it to a period of one (1) year, subject to further extension by the legislature. It provides for oversight of that authority through regular, mandated reporting wherein any extension of an emergency order under the Act would have to be justified. Additionally, it addresses enforcement and compliance through the same type of provisions on offences and penalties as those already set out under the EMCPA.

It is important to note that despite the provincial declaration of emergency coming to an end, it will nonetheless remain possible for an individual head of the council of a municipality to declare that an emergency exists in any part of their municipality (or to continue such a declaration) and to therefore exercise the powers granted to municipalities in such circumstances by the EMCPA. It also continues to remain possible for Ontario’s Chief Medical Officer of Health or for local medical officers of health to exercise the powers granted to them by the Health Protection and Promotion Act.

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CRA EXTENDING TAX DEADLINES TO SEP 30 - PAYMENTS AND FILING RETURNS.

Due to COVID, the CRA is further extending the deadlines for making tax payments, paying interest and for filing returns: 

Payment deadline extension

The CRA is extending the payment due date for current year individual, corporate, and trust income tax returns, including instalment payments, from September 1, 2020, to September 30, 2020.

Penalties and interest will not be charged if payments are made by the extended deadline of September 30, 2020. This includes the late-filing penalty as long as the return is filed by September 30, 2020.

Interest on Existing Tax Debt

The CRA is also waiving interest on existing tax debts related to individual, corporate, and trust income tax returns from April 1, 2020, to September 30, 2020 and from April 1, 2020, to June 30, 2020, for goods and services tax/harmonized sales tax (GST/HST) returns. While this measure for existing tax debts does not cancel penalties and interest already assessed on a taxpayer’s account prior to this period, it ensures that a taxpayer’s existing tax debt does not continue to grow through interest charges during this difficult time. This measure provides immediate relief to impacted taxpayers.

Filing returns

The previously extended filing due dates for individual, corporate, and trust income tax returns remain unchanged. However, recognizing the difficult circumstances faced by Canadians, the CRA will not impose late-filing penalties where a current year individual, corporation, or trust return is filed late provided that it is filed by September 30, 2020.

The CRA encourages everyone to file their individual, corporate and trust returns as soon as possible, even though payment deadlines are being extended. This is particularly important for individuals receiving credits and benefits, such as the Canada Child Benefit.

To ensure Canadians continue to receive their benefits and credits during the COVID-19 pandemic, the CRA temporarily suspended interruptions for those who were unable to file their income tax and benefit return by the June 1 deadline. Currently, if a 2019 individual tax return has not been assessed, the CRA is calculating benefits and/or credits for the July to September 2020 payments based on information from 2018 tax returns. However, if 2019 individual tax returns are not received and assessed by early September 2020, estimated benefits and/or credits will stop in October 2020 and individuals may have to repay the amounts that were issued as of July 2020.

The CRA has helpful information and a step-by-step guide to help Canadians complete their taxes. The CRA tax processing system is fully operational and returns are being processed quickly to support Canadians in getting their refunds and ensuring continuity of their benefits.

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EMPLOYERS AND EMPLOYERS - BE AWARE OF THE CONSEQUENCES OF THE END OF THE DECLARATION OF EMERGENCY - DEEMED TERMINATIONS AND CONSTRUCTIVE DISMISSAL CLAIMS ARE NOW LIVE AGAIN. ANSWERS TO YOUR QUESTIONS......

Both employers and employees in the CKL need to be aware of their exposure to risk arising from the end of the province’s declaration of emergency.

While existing emergency orders will continue under the new, replacement legislation, the end of the emergency declaration will potentially have significant consequences for both employers and employees.

For example:

Risk of Deemed Terminations

In late May, the Ontario government filed Regulation 228/20 under the Employment Standards Act, 2000 (“ESA”), which provides that employees who did not perform their duties because their hours of work had been temporarily reduced or eliminated due to COVID-19 during what was referred to as the “COVID-19 period” were deemed to be on Infectious Disease Emergency Leave (or “IDEL”).

The COVID-19 period was specifically defined under the Regulation as beginning on March 1, 2020 and ending six (6) weeks after the declared state of emergency comes to an end.

Because the declared state of emergency ended on July 24, 2020, the “clock” starts to run.

Once that six-week period ends, the regular ESA rules regarding temporary lay-offs will apply once again and employers who cannot return employees to work within the time frame permitted for such temporary lay-offs may face claims of deemed termination.

 Risk of Constructive Dismissal Claims

Pursuant to Regulation 228/20, the Ontario government also provided employers with limited, statutory protection against claims of constructive dismissal where an employee’s hours were temporarily reduced or eliminated, or where an employee’s wages were temporarily reduced, due to COVID-19 during the COVID-19 period.

However, once the COVID-19 period ends, employers who remain unable to return employees to their regular hours or wages will therefore also need to be mindful of the risk of claims of constructive dismissal.

 Availability of Emergency Leave: Declared Emergencies and Infectious Disease Emergencies

Under the ESA, Emergency Leave – which is an unpaid, job-protected leave of absence available to eligible employees – can currently be accessed in two ways:

  1. in cases of declared emergency (also referred to as Declared Emergency Leave or “DEL”); i.e., when an emergency is declared under the EMCPA and the individual meets other legislated conditions; or

  2. in cases of infectious disease emergencies (also referred to as Infectious Disease Emergency Leave or “IDEL); i.e., for reasons related to COVID-19 specifically, including but not limited to that the individual is under medical investigation, supervision or treatment; the individual is under quarantine or isolation; or the individual is providing care or support to an a listed family member (e.g., school or daycare closures).

With the end of the declared state of emergency in Ontario, employees will generally no longer be able to qualify for DEL. However, IDEL will continue to remain available to those who qualify for reasons related to COVID-1 specifically and employers will need to be mindful of each individual employee’s circumstances when determining whether or not they will continue to remain eligible for IDEL from this date forward.

 Continuation of Emergency Orders

As all existing emergency orders will continue under the new legislation, employers must continue to monitor for any temporary orders that might apply to their workplace.

For example, there are currently a number of orders that deal with labour redeployment or workplace and management rules in certain sectors, as well as with the closure of certain places and spaces or the regulation of how businesses and establishments can safely operate.

Furthermore, although the Act does not permit the Lieutenant Governor to create new temporary orders, it does allow some of them to be amended. Employers must therefore be mindful that any applicable temporary orders are potentially subject to change.

SUMMARY

With the declared state of emergency ended, those on or deemed to be on declared emergency leaves or a deemed infectious diseases leave under the Ontario Employment Standards Act, 2000 (the "ESA") and its regulations will see certain rules and entitlements expired or set to expire. 

Unless the government legislates or regulates otherwise:

• employees are no longer eligible for a declared emergency leave under the ESA; and

• effective on or about September 4, 2020:

  • temporary reductions of employees' hours of work or wages by an employer for reasons related to COVID-19 will no longer be deemed to be on an infectious disease leave in accordance with the O. Reg. 228/20: Infectious Disease Emergency Leave under the ESA, available here;
  • any temporary reductions to, or elimination of an employee's hours of work, or the reduction of any employee's wages by the employer for reasons related to COVID-19 will no longer expressly be deemed not to constitute constructive dismissal under the ESA;
  • temporary layoffs under the ESA will no longer be converted to, or deemed to be, an infectious disease leave in accordance with the O. Reg. 228/20; and
  • any employees who were deemed to be on an infectious disease leave in accordance with O. Reg. 228/20 will cease to be on the infectious disease leave.

The end of the declared state of emergency does not impact employees' entitlement to the infectious disease emergency leave provided for under the ESA, which applies for as long as the event triggering entitlement to the leave lasts.

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HOW DO I CHALLENGE A LAST WILL AND TESTAMENT? WHAT GROUNDS DO I NEED? HOW DOES THIS WORK? ANSWERS.......

So, you’re unhappy with the last will and testament of a family member, or someone from whom you reasonably expected to inherit……

Legally, any person can challenge the validity of a Will, but there are only certain grounds to do so.

If you do not qualify within one or more of these recognized grounds, the Court is unlikely to allow your claim to proceed to what is often very costly and protracted litigation proceedings.

Will disputes are on the rise in Ontario, unfortunately.

They are often characterized by emotional, bitter litigation, usually resulting in the respective lawyers financially gaining more so than the litigants themselves.

What are these grounds to challenge the validity of a Will in Ontario?

Lack of Testamentary Capacity

A testator (meaning the person making the Will) must have the necessary level of mental capacity in order to make a valid Will. Generally speaking, the testator must understand what a Will is and must understand, at least, the general extent of their property. They must also remember and have given consideration to their close relatives to whom they would usually be expected to leave their estate. They must also not be under any delusions that would affect their Will.

It is important to note that the threshold for testamentary capacity is not particularly high. A testator does not have to be fully capable with respect to the management of the property. Rather, so long as the testator has a general understanding of what they own, this will be sufficient.

Likewise, it is important to note that in Ontario, a testator is generally allowed to cut adult children out of a Will (so long as they are not financially dependent on the testator – see below). The test for capacity only requires that the testator remains aware of their children and makes a conscious decision as to whether or not to leave them anything.

Lack of Knowledge and Approval

In addition to having the proper level of capacity, a testator must also actually be aware of what is in their Will. This does not mean that the testator needs to fully understand and appreciate the nuance of each and every clause in the Will (which may be drafted in dense “legalese”); but if the testator signed their Will without being fully aware of the general scheme set out in it, then there is a basis on which to contest the Will.

Will Not Validly Executed

Another ground for challenging a Will is if the proper procedure has not been followed for making a valid Will. To be valid, a Will must be in writing and signed by the testator and two witnesses. The witnesses should not be beneficiaries, or else the gifts made to those beneficiaries acting as witnesses will be void.

If these requirements are not properly met, then the Will can be challenged.

However, it is important to point out that in Ontario, there is also a second, special way to make a valid Will, called a “holograph” Will. This is a Will written entirely in the testator’s handwriting, and signed by the testator.

Undue Influence

Undue influence occurs when someone exerts an inappropriate level of pressure on a testator, to the extent that the testator makes a Will that goes against their true wishes.

As an example, consider a situation in which a testator is very weak and frail and becomes entirely dependent on a friend to care for them. That caregiver may try to exploit the relationship of dependence in order to effectively force the testator to change their Will. If, as a result, the testator makes a Will that goes against their true wishes, then that Will is invalid. However, if the testator legitimately wants to change their Will to reward this caregiver, then this is not undue influence.

It is important to note that it is a very high bar to establish undue influence. In general, there is no prohibition against directly asking or pleading with someone to change their Will. This type of behaviour only crosses the line into undue influence when the testator feels forced to make a Will that they otherwise would not make.

Failure to Provide for Dependents

Finally, if a Will does not make sufficient provision for a dependent of the testator, then this dependent can bring a court application to receive ongoing or lump-sum support from the estate. In this context, a dependent includes someone whom the testator had a legal obligation to support (for example, a spouse or minor child), as well as someone whom the testator was actively supporting prior to their death, even if there was no strict obligation to do so.

This type of court application is not a direct challenge to the validity of the Will itself. Rather, it is an application seeking support to be paid “off the top” of the estate assets. The remaining estate assets would still be distributed as per the Will.

Credit: 

C. Crisman-Cox, Miller Thomson LLP 

 

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CKL BUSINESSES - EVERYTHING YOU NEED TO KNOW ABOUT THE NEW CHANGES TO THE CANADIAN EMERGENCY WAGE SUBSIDY - YOUR CHEAT SHEET AND GUIDE, INCLUDING SAMPLE CALCULATIONS.

The Canadian Emergency Wage Subsidy (CEWS) is being both extended and expanded, likely to co-ordinate with the trailing off of the CERB benefit for many. 

This summary explains the key changes to the CEWS, including providing sample calculations and period-by-period qualification conditions: 

____________________________________________

On July 17, 2020, the Canadian Government released draft legislative proposals (the "Amendments" or "Bill C-20") to amend section 125.7 and other provisions of the Income Tax Act (Canada) (the "ITA").The Amendments extend the Canada Emergency Wage Subsidy (the "CEWS") and significantly expand the scope of the program by making it available to any eligible employer that experiences a revenue decline for qualifying periods starting on July 5, 2020.

The original CEWS was implemented for 12 weeks from March 15, 2020 to June 6, 2020. On May 15, 2020, Finance Minister Bill Morneau announced that the Government of Canada would extend the CEWS by an additional 12 weeks to August 29, 2020. The Canadian Government is proposing a further extension of the CEWS to December 19, 2020.

The information below is based on the draft legislation published by the Department of Finance on July 17, 2020. The amendments passed by Parliament may differ considerably from these proposals. Given this uncertainty, in many cases, it would be prudent not to rely on these changes until the amendments are enacted.

The changes to the CEWS include the following:

  • The CEWS will now cover at least 9 4-week qualifying periods (each, a "Period") starting from March 15, 2020 and ending on November 21, 2020, with the 10th Period expected to be proposed by the government at a later date.

  • The CEWS continues to be available to taxable corporations and trusts, individuals, non-profit organizations, registered charities, and certain partnerships whose members include eligible employers, and certain other prescribed organizations but is not available to public institutions.

  • For the qualifying periods starting on or after July 5, 2020 (i.e. Periods 5 to 9), the CEWS consists of two subsidies: (i) a base subsidy available to all eligible employers that experience a decline in revenue, which will vary depending on the magnitude of the revenue decline; and (ii) a top-up subsidy of up to an additional 25 per cent (of the remuneration paid) for those eligible employers with at least a 50 per cent revenue decline based on a 3-month average.

  • The calculation of the base subsidy is intended to provide for a gradual reduction in the wage subsidy as revenues increase, with the base subsidy rate gradually reduced in later Periods to transition into a phase-out by December, 2020.

  • The top-up subsidy is intended to provide additional financial support to eligible employers that have been most affected by the pandemic.

  • For Periods 5 and 6, a "safe harbour" rule provides that eligible employers may calculate their wage subsidy under the rules currently applicable for Periods 1 to 4 if their revenue decline is at least 30% in June or July 2020 (Period 5) and at least 30% in July or August 2020 (Period 6).

  • The CEWS for Periods 1 to 4 remains the same as before with the Amendments enacting previously announced changes to the wage subsidy.

  • There continues to be no maximum number of employees for which an eligible entity can claim a subsidy and there is no cap on the total amount of the subsidy that an eligible entity may claim.

  • An online application to be filed with the Canada Revenue Agency (the "CRA") for each particular Period has been extended to no later than January 30, 2021.

The Amendments also implement measures previously announced on May 15, 2020. This bulletin summarizes these changes.

Eligible Entities

Entities that were eligible to claim the CEWS during Periods 1 to 4 (e.g., taxable corporations, partnerships consisting primarily of eligible entities, etc.) continue to be eligible for Periods 5 to 9.

Further to the government's announcement on May 15, 2020, the list of eligible entities has been expanded to include the following for the entire duration of the program:

  • Partnerships where more than 50 per cent of the fair market value of the interest in the partnerships is held by eligible entities (previously, eligible partnerships only included those whose members consisted entirely of eligible entities).

  • Private colleges and schools, including for-profit and not-for-profit institutions such as art schools, language schools, driving schools, flight schools and culinary schools.

  • Registered Canadian Amateur Athletic Associations.

  • Registered Journalism Organizations.

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

Qualifying for the Subsidy

For Periods 5 to 9, the "all-or-nothing" revenue drop thresholds of 15% or 30% will be eliminated. As discussed below, all eligible entities that experience a revenue decline will qualify for the CEWS, provided that other qualifying conditions continue to be met. These include: (i) the filing of an application before February 2021 (previously October 2020), (ii) the individual who has "principal responsibility" for the financial activities of the entity attests that the application is "complete and accurate in all material respects", and (iii) the eligible entity must either have had a CRA payroll account on March 15, 2020 or engaged a payroll service provider to administer the eligible entity's payroll using a CRA business number on March 15, 2020.

Calculating the Subsidy

For Periods 5 to 9, the subsidy amount per eligible employee will depend on whether the employee is active or on paid leave.

For active employees, all eligible employers that have a revenue decline will generally receive at least a base subsidy which will be directly proportional to the magnitude of the revenue decline, subject to a maximum base percentage (described below). The base subsidy will gradually be reduced in order to transition to a phase out in December. In addition, a top-up subsidy is available to those eligible employers that suffer at least a 50 per cent revenue decline based on a 3-month average, up to a maximum of 25 per cent.

For employees on paid leave, eligible employers with a revenue decline greater than 0% will generally be able to claim a subsidy during Periods 5 and 6 on the same basis as Periods 1 to 4. However, beginning in Period 7, an eligible employer with a revenue decline will generally be able to claim a subsidy equal to the lesser of (i) 100% of the eligible remuneration paid, and (ii) an amount to be prescribed by regulation, which has not yet been published.

Employer premiums and contributions paid on account of Employment Insurance ("EI"), the Canada Pension Plan ("CPP"), the Quebec Pension Plan ("QPP") and the Quebec Parental Insurance Plan (the "QPIP") for employees on paid leave will continue to be refundable.

In both cases:

  • special rules apply for non-arm's length employees; and

  • an eligible employer may calculate its subsidy under the old rules for Periods 5 and 6 if it experiences a revenue decline of at least 30% in June or July 2020 (Period 5) and at least 30% in July or August 2020 (Period 6). This "safe harbour" is being provided for fairness to those who made business decisions based on current rules.

The CEWS for Periods 5 to 9 (July 5 to November 21)

The amount of the subsidy available for an eligible employer with a revenue decline in Periods 5 to 9, for each week in the relevant Period, is equal to:

1. The aggregate of, for each active eligible employee (subject to the safe harbour rule for Periods 5 and 6 described below):

    (a)  the applicable base subsidy rate plus the applicable top-up subsidy rate for the Period; multiplied by

    (b)  the least of: (i) total amount of eligible remuneration paid to the employee, (ii) $1,129, and (iii) the employee's "baseline remuneration" (in the case of an employee who does not deal at arm's length with the eligible employer); plus

2. The aggregate of, for each eligible employee on leave with pay:

    (a) For Periods 5 and 6: on the same basis as Periods 1 to 4; or

    (b) For Periods 7 to 9: the lesser of: (i) total amount of eligible remuneration paid to the employee, (ii) an amount to be determined by regulation, and (iii) $0 (in the case of a non-arm's length employee who has a "baseline remuneration" of $0); plus

3. The total amount of employer premiums and contributions paid on account of EI, CPP, QPP and QPIP in respect of eligible employees who are on leave with pay during the qualifying period; minus

4. The total amount received under the 10% temporary wage subsidy under subsection 153(1.02) (the "10% Temporary Subsidy") in the Period; minus

5. The total amount of work-sharing benefits received by eligible employees for the qualifying period.

For Periods 5 and 6, a "safe harbour rule" is provided that allows an eligible employer to claim a wage subsidy rate not lower than the rate applicable under the CEWS rules that were in place for Periods 1 to 4. The result is that, for Periods 5 and 6, an eligible employer with a revenue decline of 30 per cent or more in June or July 2020 (Period 5) or in July or August 2020 (Period 6) could receive the greater of: (i) a wage subsidy under the old rules equal to 75 per cent of eligible remuneration paid (up to a weekly maximum of $847 per employee), or (ii) a wage subsidy rate under the new rules (which could, with the top-up subsidy, attain 85 per cent or a weekly maximum of $960 per employee).

The following is a description of the new rules applicable to active employees and paid leave employees.

Active Employees

Base Subsidy

The base subsidy is generally equal to the entity's base subsidy rate multiplied by the amount of eligible remuneration paid to an eligible employee, subject to a weekly maximum that is gradually reduced from $677 in Periods 5 and 6 (July 5 to August 29) to $226 in Period 9 (October 25 to November 21).

The base subsidy rate varies depending on the level of the eligible entity's revenue decline. It is subject to a maximum percentage (achieved when the revenue drop is 50 per cent or more) that is gradually reduced from 60 per cent in Periods 5 and 6 (July 5 to August 29) to 20 per cent in Period 9 (October 25 to November 21).

The following table sets out the base subsidy calculation for Periods 5 to 9:

Period 

Qualifying Period 

Revenue Drop in Current Reference Period 

Base Subsidy Rate 

Maximum Weekly Base Subsidy per Employee[2]

5

July 5 – August 1

0% to 49%

1.2  x revenue drop

$677

50% and over

60%

6

August 2 – August 29

0% to 49%

1.2 x revenue drop

$677

50% and over

60%

7

August 30 – September 26

0% to 49%

1.0 x revenue drop

$565

50% and over

50%

8

September 27 – October 24

0% to 49%

0.8 x revenue drop

$452

50% and over

40%

9

October 25 – November 21

0% to 49%

0.4 x revenue drop

$226

50% and over

20%

Eligibility for the base subsidy would generally be determined by the change in an eligible employer's monthly revenues, year-over-year, for the applicable reference period (e.g. June 2020 vs June 2019). An eligible employer could instead elect to calculate its revenue decline under an alternative approach by comparing its revenue in the applicable reference period to the average revenue earned in January and February 2020 (e.g. June 2020 vs average revenue in January and February 2020).

Employers that have elected to use the alternative approach for the first 4 Periods would be able to either maintain that election for Period 5 and onward or revert to the general approach. Similarly, employers that have used the general approach for the first 4 Periods would be able to either continue with the general approach or elect to use the alternative approach for Period 5 and onward. However, this selection will apply for the remaining periods and for both the calculation of the base subsidy and the top-up subsidy.

For Periods 5 and following, an eligible employer can use the greater of its percentage revenue decline in the current period and that in the previous period to determine its base subsidy rate in the current period. This is similar to the deeming rule in Periods 1 to 4 that allowed an eligible employer that met the revenue test in one period to automatically qualify for the following period.

The conditions described above with respect to the base subsidy reference periods may be summarized as follows:

Period 

Qualifying Period 

Reference Period: General Approach 

Reference Period: Alternative Approach 

5

July 5 – August 1

July 2020 over July 2019

or 

June 2020 over June 2019

July 2020 or June 2020

over

average of January and February 2020

6

August 2 – August 29

August 2020 over August 2019

or 

July 2020 over July 2019

August 2020 or July 2020

over

average of January and February 2020

7

August 30 – September 26

September 2020 over September 2019

or 

August 2020 over August 2019

September 2020 or August 2020

over

average of January and February 2020

8

September 27 – October 24

October 2020 over October 2019

or 

September 2020 over September 2019

October 2020 or September 2020

over

average of January and February 2020

9

October 25 – November 21

November 2020 over November 2019

or 

October 2020 over October 2019

November 2020 or October 2020

over

average of January and February 2020

Top-up Subsidy

A top-up subsidy is available for eligible entities that experience a revenue decline of at least 50% over a specified 3-month period.

The top-up subsidy is generally equal to the entity's top-up subsidy rate multiplied by the amount of eligible remuneration paid to an eligible employee, subject to a weekly maximum of $283.

A top-up subsidy rate of up to 25 per cent would be available to employers based on the revenue drop experienced compared to either the same months in the prior year, or alternatively, by comparing the average monthly revenue in the preceding three months to the average monthly revenue in January 2020 and February 2020.

The top-up rate is generally equal to 1.25 times the amount by which the revenue drop percentage for a specified 3-month period exceeds 50 per cent, up to a maximum top-up rate of 25 per cent (which is available when an eligible entity experiences a 70 per cent revenue decline over the specified 3-month period). The following examples illustrate the calculation of the top-up rate:

3-month average revenue drop 

Top-up Subsidy Rate  

Top-up Calculation: 

1.25 x (3-month revenue drop – 50%) 

70% and greater

25.0%

1.25 x (70%-50%) = 25.0%

65

18.75%

1.25 x (65%-50%) = 18.75%

60

12.5%

1.25 x (60%-50%) = 12.5%

55

6.25%

1.25 x (55%-50%) = 6.25%

50% and lower

0.0%

1.25 x (50%-50%) = 0.0%

Two methods may be used to calculate the change in an eligible employer's revenues for a 3-month period. Under the general approach, the comparison is between the average monthly qualifying revenue for the 3-month period ending before the current reference period and the same 3 months in the previous year. Under the alternative approach, the comparison is between the average monthly qualifying revenue for the 3-month period ending before the current reference period and the average of the months of January and February 2020. The approach chosen for the base subsidy rate must also be used in determining the prior reference period for the top-up subsidy for Period 5 and onwards. In other words, if the average revenue in January and February 2020 is used as the benchmark revenue for the base subsidy, it must also be used for the top-up subsidy.

The reference periods for the 3-month revenue decline may be summarized as follows:

Period 

Qualifying Period 

Reference Period: General Approach 

Reference Period: Alternative Approach 

5

July 5 – August 1

April to June 2020 average

over

April to June 2019 average

April to June 2020 average

over

January and February 2020 average

6

August 2 – August 29

May to July 2020 average

over

May to July 2019 average

May to July 2020 average

over

January and February 2020 average

7

August 30 – September 26

June to August 2020 average

over

June to August 2019 average

June to August 2020 average

over

January and February 2020 average

8

September 27 – October 24

July to September 2020 average

over

July to September 2019 average

July to September 2020 average

over

January and February 2020 average

9

October 25 – November 21

August to October 2020 average

over

August to October 2019 average

August to October 2020 average

over

January and February 2020 average

Employees On Leave With Pay

Under the new rules, eligible employers must calculate their wage subsidy differently for employees who are on paid leave for an entire week during a particular Period.

The subsidy will generally be equal to the lesser of (i) the eligible employee's eligible remuneration for the week, and (ii) an amount to be determined by regulation (to be released at a later date). It is expected that the amount fixed by regulation will align with the benefits provided through the CERB and EI.

As previously mentioned, the subsidy calculation for an employee that is on leave with pay during Periods 5 and 6 would remain the same as for Periods 1 to 4 (if greater than the subsidy obtained under the new rules). In other words, an eligible entity may receive a 75% wage subsidy for paid leave employees (up to a weekly maximum of $847) in Periods 5 and 6, assuming its revenue decline for the base subsidy (i.e., its revenue decline over a calendar month) or top-up subsidy (i.e., its revenue decline over a 3-month period) is greater than 0%. The 0% threshold is noteworthy and stands in contrast to the 30% threshold an employer is required to meet to receive a 75% wage subsidy for active employees.

The employer portion of premiums and contributions in respect of CPP, EI, QPP and QPIP in respect of employees on leave with pay would continue to be refunded to the employer.

The CEWS for Periods 1 to 4 (March 15 to July 4)

The CEWS for Periods 1 to 4 remains the same as before with the Amendments enacting previously announced changes to the wage subsidy. In summary, for Periods 1 to 4, eligible entities who suffer a decline in "qualifying revenue" of at least 15% in Period 1 or 30% in Periods 2 to 4 may claim a wage subsidy as described below. If an eligible entity meets the revenue drop test for Period 1, Period 2, or Period 3, it automatically qualifies for the subsidy for the immediately following Period.

The amount of the subsidy applicable to Periods 1 to 4 is equal to:

1. The aggregate of, for each eligible employee, the greater of the following amounts:

    (a) 75 per cent of eligible remuneration paid to the employee, up to a maximum of $847 per week; and

    (b) the total amount of eligible remuneration paid to the employee, up to a maximum of $847 per week or 75 per cent of the employee's "baseline remuneration", whichever is less; plus

2. The total amount of employer premiums and contributions paid on account of EI, CPP, QPP and QPIP in respect of eligible employees who are on leave with pay during the qualifying period; minus

3. The total amount received under the 10% Temporary Subsidy for the qualifying period; minus

4. The total amount of work-sharing benefits received by eligible employees for the qualifying period.

The revenue reduction is determined by reference to either: (i) the revenue earned in the same month in 2019, or (ii) the average revenue earned in January and February 2020. The same approach must be used for the first four Periods. The conditions described above may be summarized as follows:

Period 

Qualifying Period 

Required Reduction 

Reference Period for Eligibility 

1

March 15 - April 11

15%

March 2020 over: (i) March 2019 or (ii) average of January and February 2020

2

April 12 - May 9

30%

Eligible for Period 1

OR

April 2020 over: (i) April 2019 or (ii) average of January and February 2020

3

May 10 - June 6

30%

Eligible for Period 2

OR

May 2020 over: (i) May 2019 or (ii) average of January and February 2020

4

June 7 – July 5

30%

Eligible for Period 3

OR

June 2020 over: (i) June 2019 or (ii) average of January and February 2020

Additional Rules for Calculating Qualifying Revenue

Amalgamated corporations may not be in a position to qualify for the CEWS since they may not have the required revenue decline or the revenue drop may not provide a full picture of their pre-crisis revenues. Further to the government's announcement on May 15, 2020, the Amendments will allow corporations formed by amalgamation to calculate the revenue for the applicable reference periods using the combined revenue of the predecessor corporations unless it is reasonable to consider that one of the main purposes for the amalgamation (or the winding up) was to qualify for the CEWS or to increase the amount of the CEWS otherwise available.

An eligible entity that acquires all or substantially all of the assets of a business carried on in Canada can elect (jointly with the seller) to include the qualifying revenue that is reasonably attributable to the acquired assets in the qualifying revenue of the eligible entity (and not the seller) for the purposes of determining the eligible entity's qualifying revenue under the CEWS.

Amendment to Eligible Employee Definition

A wage subsidy may only be claimed in respect of eligible remuneration paid to eligible employees.

For Periods 1 to 4, an eligible employee was defined as an individual who is employed in Canada and who has not been without remuneration for 14 or more consecutive days in the relevant qualifying period.

Effective July 5, 2020 (i.e., for Periods 5 and following), the eligibility criteria would no longer exclude employees that are without remuneration in respect of 14 or more consecutive days in an eligibility period, meaning that employees who are paid, for example, 1 week out of 4 will qualify as eligible employees. This amendment is being introduced to help transition workers from the CERB to the CEWS.

Amendment to Baseline Remuneration Definition

Baseline remuneration refers to the average weekly eligible remuneration paid to eligible employees from January 1, 2020 to March 15, 2020. To accommodate seasonal employees, in particular, an eligible employer may elect one of the following alternative periods on an employee-by-employee basis:

  • Periods 1 to 3: March 1, 2019 to May 31, 2019.

  • Period 4: March 1, 2019 to May 31, 2019 orMarch 1, 2019 to June 30, 2019.

  • Period 5 and following: July 1, 2019 to December 31, 2019.

In all cases, the calculation of average weekly remuneration would exclude any period of 7 or more consecutive days without remuneration.

Under the new rules for Periods 5 to 9, the concept of baseline remuneration is only relevant to non-arm's length employees (discussed below). For arm's-length employees, the subsidy would be based solely on actual remuneration paid for the qualifying period.

Non-Arm's Length Employees

A wage subsidy may only be claimed in respect of non-arm's length employees (such as owner-managers) provided that they have a baseline remuneration greater than $0 (see above for the baseline remuneration periods that may be used for calculation purposes).

The amount of the subsidy for active non-arm's length employees for Periods 5 to 9 will generally be equal to the sum of the base subsidy rate and the top-up rate multiplied by the lesser of (i) 100% of the eligible remuneration paid, (ii) $1,129, and (iii) the non-arm's length employee's baseline remuneration.

Amendment to Certain Anti-avoidance Rules

Certain anti-avoidance rules were enacted under the original CEWS legislation to deny a wage subsidy if an action was taken to effectively reduce the employer's qualifying revenue for the purpose of qualifying for the wage subsidy. These rules will be amended to apply in situations where not only actions were taken to qualify for the wage subsidy, but also to increase the amount of the wage subsidy.

This amendment adapts the anti-avoidance rules to the new wage subsidy rules, which provide a subsidy on a sliding scale depending on the amount of an eligible entity's revenue decline.

Objection and Appeal

After reviewing a CEWS application, the CRA will now issue a "notice of determination" accepting, varying or denying the subsidy claimed. If an eligible employer disagrees with the notice of determination, it may file a notice of objection under the usual dispute resolution process set out in the ITA.

Commentary

The estimated total fiscal cost for the expanded CEWS program is $83.6 billion. This amount will be offset by income taxes collected on salary and wages paid to employees under the program and an anticipated reduction of benefits paid under the CERB and EI programs. Although the CEWS will be considered taxable government assistance for taxable employers, the income inclusion should generally be offset by a deduction for employee remuneration.

The expansion of the CEWS to a greater number of eligible employers starting in Period 5 has significantly increased the complexity of the program. Furthermore, the fact that the new subsidy will generally be directly proportional to an eligible employer's revenue decline percentage means that the entity will have to carefully calculate its qualifying revenue to avoid excessive claims and keep supporting records documenting all calculations. Under the previous rules, certain eligible employers may have been comfortable claiming the CEWS based on estimated revenue because of the all-or-nothing 15% or 30% threshold. This approach is not possible or advisable here.

Overestimating a revenue drop may result in a tax assessment for the amount of the excess subsidy claimed and the related interest, including possible penalties. Eligible employers should also bear in mind that certain anti-avoidance rules will be expanded to apply to actions that may "increase" the amount of the subsidy (rather than just "qualify" under the prior version), which further underscores the importance of precisely calculating their revenue drop.

While we understand the Canadian government's concern for the potential abuse of this generous program, there will be many instances of confusion and/or honest mistakes. There will be genuine disagreements regarding, for example, the computation of the qualifying revenue drop, as well as eligible remuneration and baseline remuneration, the application of the anti-abuse provisions, among others.

While the changes to the CEWS are intended to broaden the availability of the program to a greater number of employers as they begin to recover from the pandemic, employers will need to consider the impact of the new rules on their staffing decisions. For example, the subsidy available for employees on paid leave for Periods 5 to 6 will remain the same as the prior Periods, but will be adjusted starting in Period 7 to take into account changes to the CERB and EI. What steps an employer will want to take as a result of these changes will vary from organization to organization and will require a detailed assessment of each organization's current financial position and its short and medium term business prospects.

As this is a CRA-administered program, we suggest that all best practices normally followed by taxpayers to comply with our self-assessment system be equally applied here, including seeking help interpreting the most up-to-date legislation and CRA guidance, completing the proper due diligence, and keeping contemporaneous records and documentation. We are committed to helping employers navigate the CEWS and available to provide further guidance and explanations as requested.

Credit

Kevin H. Yip and Taj Kudhail, Fasken, published July 23, 2020

 

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FEDERALLY REGULATED BUSINESSES IN THE CKL (BANKS, TRANSPORTATION, COMMUNICATIONS, etc.) - BETTER GET READY FOR THE NEW MAJOR CHANGES TO YOUR ANTI-HARASSMENT/VIOLENCE DUTIES AND POLICIES AS OF DEC. 31. WHAT YOU NEED TO KNOW AND DO.

At the end of this year (Jan. 1, 2021), employers that are federally regulated (banks, transportation, communication, etc.) must comply with the new “Work Place Harassment and Violence Prevention Regulations (the “Regulations”).

They extensively overhaul employer’s harassment-related duties and obligations and impose many new policy-related requirements.

For example, the Regulations require employers to solicit feedback and work with a policy committee, workplace committee, or occupational health and safety representative (each an “Applicable Partner”), to take proactive steps to prevent the occurrence of workplace harassment and violence. Specifically, an employer and Applicable Partner must jointly:

  • conduct workplace assessments to identify risks related to workplace harassment and violence, and to implement preventative measures aimed at alleviating those risks;

  • develop and implement a workplace harassment and violence prevention policy that outlines how the employer will address harassment and violence in the workplace (all compulsory requirements for such policy are set out in section 10 of the Regulations);

  • develop emergency procedures that are to be implemented when the occurrence of harassment or violence pose an immediate danger or threat to the health and safety of an employee; and

  • develop or identify workplace violence and harassment training to be delivered to all employees within 1 year of the Regulations coming into force (and within 3 months of commencing employment for those employees who commence employment after the Regulations come into force).

The Regulations also require employers to:

  • provide employees with information on support services related to mental and psychological health;

  • designate a person or work unit that is responsible for receiving notice of an occurrence of workplace harassment or violence;

  • retain certain records relating to workplace harassment and violence (a list of records that must be retained is set out in section 35 of the Regulations); and

  • deliver an annual report to the Minister on or before March 1st of each year, reporting on the frequency of workplace harassment and violence occurrences.

New Complaint Resolution Process

The Regulations also include a new framework that employers must follow when responding to workplace harassment and violence complaints. Notably, the framework requires an employer, or a person designated by the employer to:

  • contact a complainant within 7 days of receiving a complaint and notify them: (i) that the complaint was received; (ii) that the workplace harassment and prevention policy has been engaged; (iii) of each of the steps in the resolution process that will be followed; and (iv) that the complainant is permitted to have representation during the resolution process;

  • contact the person who is alleged to have been responsible for the occurrence of workplace harassment or violence that was identified in the complaint, and notify the person: (i) they have been named or identified as the responding party to a complaint; (ii) that the workplace harassment and prevention policy has been engaged; (iii) of each step of the resolution process that will be followed; and (iv) that the responding party is permitted to have representation during the resolution process;

  • within 45 days of receiving notification of a complaint, make “every reasonable effort” to resolve the complaint, which may include a negotiated resolution or participation in conciliation (if agreed to by all parties to the complaint);

  • select a qualified investigator to investigate the complaint if requested by the complainant to do so. In order to be considered a qualified investigator, the individual must have specific qualifications and training, as well as knowledge of the Canada Labour Code, the Canadian Human Rights Act and any other legislation that is relevant to harassment and violence in the workplace (investigator qualifications are set out in section 28 of the Regulations);

  • following the issuance of an investigator’s report, the employer and the Applicable Partner must jointly determine which of the recommendations set out in the report will be implemented to eliminate or minimize the risk of a similar occurrence; and

  • conclude the resolution process within 1 year after the day on which notice of the occurrence was received.

What Should Federally Regulated Employers Now Do?

The Regulations are scheduled to take effect on January 1, 2021.

Because of the extensive new duties and policy requirements imposed, employers should start working with the Applicable Partner to review and amend existing policies and training material to ensure compliance with the Regulations.

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NEW FUNDING TO COMBAT HATE CRIME IN THE CKL NOW AVAILABLE - APPLY TODAY TO START A COMMUNITY PROGRAM.

The Ontario government is investing $1.7 million over the next two years in community-based programs to combat hate-motivated crimes.

The funding will flow through the Safer and Vital Communities (SVC) Grant  to not-for-profit organizations and First Nation Band Councils.

Applicants are required to partner with their local police service and are encouraged to partner with at least one other organization from a different sector to ensure a broad range of community engagement.

The Safer and Vital Communities Grant is open to community-based, not-for-profit organizations as well as Indigenous community-based, not-for-profit organizations and First Nation Band Councils to implement local projects that tackle hate-motivated crime and address the increase of police-reported hate crime in Ontario.

The theme of this year's grant program is Preventing Hate-Motivated Crime through Community Collaboration.

To be eligible, applicants must address hate-motivated crime in their community through programs and strategies.

Applications could include recreational programs that positively affect the development of children and youth, raising awareness of hate-motivated crimes, as well as the improvement of security infrastructure.

Successful applicants and projects will be announced in the winter of 2021.

Applications for the Safer and Vital Communities Grant are open from July 22 to September 16.

Quick Facts

  • According to Statistics Canada, in 2017, police-reported criminal incidents in Canada that were motivated by hate jumped by 47 per cent over the previous year. The largest provincial increase occurred in Ontario at 67 per cent.

  • The $1.7-million investment will be made over two years from 2020 to 2022.

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NEW LANDLORD/TENANT LAW NOW IN EFFECT IN THE CKL - MORE PROTECTION TO TENANTS. WHAT TENANTS/LANDLORDS NEED TO KNOW TODAY.

The Ontario government is increasing fines for unlawful evictions and reinforcing the necessity for landlords to explore repayment agreements before considering evictions.

These measures are included in the Protecting Tenants and Strengthening Community Housing Act, which was passed today. 

The legislation, which updates the Residential Tenancies Act, 2006 and Housing Services Act, 2011, will make it easier to resolve disputes while protecting tenants from unlawful evictions by:

  • Requiring tenant compensation of one month's rent for "no fault" evictions;

  • Allowing the Landlord and Tenant Board to order up to 12 months' rent in compensation for eviction notices issued in bad faith or where the landlord does not allow the tenant to move back in after renovations or repairs;

  • Doubling the maximum fine amounts for offences under the Act to $50,000 for an individual and $250,000 for a corporation.

The changes will also modernize and streamline the dispute resolution processes at the Landlord and Tenant Board and encourage the use of alternatives to formal hearings to resolve certain issues and encourage negotiated settlements. The Landlord and Tenant Board must now consider whether a landlord tried to negotiate a repayment agreement with a tenant before it can issue an eviction order for non-payment of rent related to COVID-19. Certain disputes, such as those related to unpaid utility bills, will shift from Small Claims Court to the Board.

In addition, as part of the multi-year strategy to stabilize and grow Ontario's community housing sector, the government has made changes to the Housing Services Act, 2011.

These amendments will help maintain the existing community housing supply by giving housing providers with expiring operating agreements and mortgages ways to remain in the community housing system by sigining a new service agreement with service managers as well as encourage existing and new housing providers to offer community housing.

Changes would also require service managers to have an access system for housing assistance beyond just rent-geared-to-income housing, and enable an outcomes-based approach to accountability by modernizing outdated service level requirements.

Ontario will consult with service managers and stakeholders on regulations to protect, repair and grow community housing supply, new access system rules, and ways to encourage new, innovative approaches.

These changes build on the commitments in the government's Community Housing Renewal Strategy and the steps already taken to make life easier for tenants and housing providers - including simplifying rent-geared-to-income calculations, and removing rules that penalize people for working more hours or going back to school.

Quick Facts

Background Information

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DECLARATION OF EMERGENCY ENDS TOMORROW!!!! BUT EMERGENCY ORDERS REMAIN IN EFFECT. WHAT YOU NEED TO KNOW FOR TOMORROW, JULY 24, 2020.

Per the Ontario government's new Bill 195, enacting the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, which will come into force on July 24, 2020, the  the declared state of emergency in Ontario ends. 

However, this new legislation: 

●  continues emergency orders in effect under the Emergency Management and Civil Protection Act (the "EMCPA") for an initial 30 days;

●   allows the Lieutenant Governor in Council (or a Minister to whom the power is delegated) to further extend these orders for up to 30 days at a time, as required;

●  allows the Lieutenant Governor in Council to amend certain emergency orders continued under the EMCPA if the amendment relates to:

 labour redeployment or workplace and management rules;

○ closure of places and spaces or regulation of how businesses and establishments can be open to provide goods or services in a safe manner;

○ compliance with public health advice; or

○ rules related to gatherings and organized public events;

●  does not allow new emergency orders to be created;

●  allows emergency orders to be rescinded when it is safe to do so; and

●  limits the ability to extend and amend orders to one year, unless extended by the legislature. 

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CKL EMPLOYERS - YOUR FULL PLAYBOOK FOR RE-OPENING AND OPERATING DURING THE PANDEMIC - SAFETY DUTIES; MANAGING RISKS AND EMPLOYEES; DEALING WITH CUSTOMERS PROPERLY - EVERYTHING YOU NEED TO KNOW TO RUN A SAFE AND RISK-MINIMIZED WORKPLACE/BUSINESS.

What every employer in the CKL needs to know about not returning to work, but carrying on business during COVID, including managing employees, safety obligations and what to do in COVID-related circumstances:

Employers have a duty to provide a safe and healthy workplace

Employers have a duty to protect the health and safety of their workers. Employers are required to implement preventative measures to ensure workers are not exposed to conditions which could be harmful to their health and safety while working. Failure to ensure a safe workplace can lead to liability under occupational health and safety (OH&S) legislation, including fines and penalties, and, in serious cases, criminal prosecutions and/or civil liability for employers not covered under the applicable workers’ compensation regime.

To meet their obligations to provide a safe workplace, it is imperative 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. These policies and practices will, of course, vary from workplace to workplace, and province to province, but this guide highlights many of the common issues employers will need to address.

Most provinces have specific requirements regarding worker health and safety representatives or a joint health and safety committee comprised of management and non-management employees. There are requirements under OH&S legislation regarding the composition of safety committees and requirements regarding the frequency of safety meetings and workplace inspections, as well as record-keeping related thereto. Employers should ensure that their return to the workplace safety plans are submitted through the appropriate workplace safety processes.

Deciding whether and when to reopen a workplace

First, an employer must determine whether they can legally reopen their physical workplaces, based on current government orders and restrictions, and each province’s plan for reopening the economy. Each province is loosening restrictions, and providing varying levels of guidance, which will continue to evolve. A summary of the steps taken towards reopening by each of the provinces in Canada can be found here.

Any breach of government orders could expose an employer to fines, and potentially increased OH&S compliance risk.

Once employers have determined that they can legally reopen their physical workplaces, employers will need to consider whether their workplaces can be opened safely. This exercise consists of (i) assessing the workplace and determining whether the employer is able to satisfy its duty to provide a safe and healthy workplace by implementing controls to address the hazard of COVID-19, and (ii) implementing those controls.

Workplace controls to address the hazard of COVID-19 should align with the guidelines, mandates and orders in the employer’s jurisdiction. This guide outlines the current guidance (as of the date noted at the top of this Guide) available from authorities across Canada regarding the practical steps employers should implement to reduce the risk of COVID-19 transmission in the workplace. We expect all levels of governments and public health authorities will provide additional guidance over time as to additional measures employers should take to protect workers.

Assessing the COVID-19 hazard in the workplace

The first step for ensuring a safe workplace is to conduct a hazard assessment for COVID-19 transmission in the workplace, as required to comply with provincial OH&S legislation. Employers should keep in mind that they may have a duty to consult joint health and safety committees, health and safety representatives and/or unions, and seek input from employees (including joint committees and worker representatives) on where potential transmission may occur and how they think COVID-19 transmission can be controlled.

When identifying hazards and developing measures to control exposure, WorkSafeBC suggests employers conduct a walk-through of the workplace to identify specific conditions or tasks that may increase the risk of exposure of employees to COVID-19. Other workers compensation boards have issued similar guidance.

All decisions must be taken on a reasoned basis, taking into consideration governmental and public health guidance and the employer’s duty of care to its employees, and in a manner consistent with the employer’s workplace health and safety policies, including those related to safety committees discussed above. Ensuring that all decisions related to workplace health and safety are properly documented and reasonable is also important. Employers may also have a duty to post their COVID-19 return to work safety plan and/or policies on their website on in the workplace, as is the case in British Columbia and most workplaces in Ontario.

Specific considerations for ensuring a safe and healthy workplace

The safest way to keep employees from contracting or spreading COVID-19 is to eliminate or reduce physical contact between employees. This can obviously be accomplished by allowing employees to work from home or continue working from home, if possible. While we strongly suspect that effective work from home policies and procedures will be an invaluable tool for most workplaces going forward, work from home arrangements are not possible for everyone, and may not be a long-term solution that can be supported by most employers (or employees for that matter). Employers’ return to work plans should consider a staggered physical return to work, ongoing assessment of the employer’s hierarchy of controls, and evolving re-assessment of workplace hazards and policies.

As employers progress from allowing an increasing proportion of employees who are working from home to physically return to the workplace, employers should consider the following hierarchy of controls to address the identified hazards related to COVID-19 in the workplace:

  • Engineering controls (i.e., physical distancing and physical barriers)

  • Administrative controls (i.e., adjusting policies and procedures to reduce risk)

  • The use of personal protective equipment (“PPE”)

We consider these types of controls in detail below:

Physical Distancing Measures for Workplaces

Employers should implement engineering controls (i.e. measures for addressing a workplace hazard by either removing the hazard or introducing a barrier between the hazard and the worker) and administrative controls (changes in workplace policies or procedures to reduce or minimize exposure to a hazard) to ensure physical distancing requirements are maintained. Employers should keep in mind that physical distancing considerations do not only apply to interactions between employees; such considerations may also apply to interactions with customers, suppliers, patients, visitors and members of the public.

Employers could consider the following measures for reducing COVID-19-related risks in the workplace:

Category

Key Considerations

Limiting the number of employees and others in the workplace

  • Encouraging employees to continue working from home if they are able.
  • Allowing only a minimum amount of staff to return to the physical workplace.
  • Implementing staggered or rotating returns to the workplace to reduce the number of employees present at the workplace at any one time. For example, specifying which day(s) an employee or group of employees may come to the workplace.
  • Controlling the number of customers and other third parties entering and exiting the workplace.

Encouraging physical distancing at work

  • Limiting entrance and exit points. Consider whether emergency evacuation plans need to be updated to address changes to access points.
  • Rearranging workspaces and floor plans, including increasing separation between desks, workstations, and furniture or fixtures in common spaces such as lunchrooms, meeting rooms, waiting rooms, and washrooms. Examples include taping off every second urinal in a men’s washroom and removing chairs in common spaces to ensure adequate physical distance.
  • Controlling access to elevators and areas within the workplace, including updating key cards to limit access and limiting the number of people who may ride in an elevator at a time.
  • Adjusting scheduling, such as start/end times and breaks to reduce the number of people using common spaces (such as break rooms, kitchens, and bathrooms) and elevators at the same time.
  • Implementing signage to ensure distance is maintained, for example using taped arrows to indicate “one way” traffic in hallways, taping off waiting areas to prevent bottlenecks in small spaces such as washrooms, taping off areas around workstations, appliances, machines, photocopiers, etc. to indicate appropriate two-metre spacing.
  • Discouraging or cancelling all non-essential activities, social events and in-person meetings.
  • Staggering appointments and meetings with customers or other meeting attendees.

Limiting physical contact and minimizing interpersonal interactions

  • Installing physical barriers between workers or between workers and third parties. A common example of a physical barrier is the plexiglass partitions currently found in many grocery stores and pharmacies.
  • Removing all communal items that cannot be easily cleaned, such as newspapers, magazines, and candy bowls.
  • Reducing or eliminating the sharing of tools and equipment (such as keyboards, pens and other tools) between employees, or if sharing is required, providing solution for employees to disinfect tools and equipment between uses.
  • Avoiding the provision or sharing of food, beverages, and food related items in the workplace including coffee makers, cutlery, mugs, etc.
  • Using technology to minimize interactions, such as using technology to share documents and going “cashless”.

Worker and workplace hygiene

  • Promoting regular and thorough hand-washing and good hygiene by employees and other individuals present in the workplace. For example, by ensuring employees have access to soap and water or alcohol-based sanitizer, putting hand sanitizer dispensers in prominent places around the workplace, ensuring these dispensers are regularly refilled, and placing informational posters throughout the workplace.
  • Developing procedures for regularly scheduled enhanced cleaning and disinfecting of the workplace, particularly high-contact items such as doors, handles, faucet handles, keyboards, and shared equipment. Various provincial governments have provided guidance on cleaning practices and workplace hygiene, that can be found in the below list of Return to work Resources for Employers.
  • Evaluation of workplace environments as to whether ventilation and filtration provided by heating, ventilating, and air-conditioning systems can reduce the risk of transmission through the air.

Preventing potentially sick employees from being at work

  • Preventing symptomatic employees from attending the workplace by developing written policies and procedures employees must follow if they are sick or suspect they have come into contact with someone diagnosed with COVID-19.
  • Requiring employees to complete a daily COVID-19 pre-screening, such as a COVID-19 self-assessment questionnaire prior to attending the workplace. Each province has published its own self-assessment tool that could be adapted by employers for this purpose.
  • Requiring employees to take a temperature test before entering the workplace, if appropriate. Note that this type of precaution is not without risk and care should be taken to ensure that employees’ rights are respected (as discussed in our Quick Reference Guide). It is also important to keep in mind the limitations of temperature checks; employees can be contagious prior to having a fever, so this measure will only be partially effective and should only be used as part of a more comprehensive screening program.

Implementing appropriate policies

  • Developing policies and practices to:
    • Limit nonessential travel to other locations or worksites.
    • Ensure that all employees are trained on all COVID-19 related policies and procedures, including up-to-date education and training on COVID-19 risk factors and protective behaviors (for example, transmission points, equipment cleaning processes, cough etiquette and handwashing).
    • Retain the names and contact details of stakeholders attending the worksite to assist public health authorities trace people who may have been exposed to COVID-19 at the worksite. Such action should only be taken after carefully considering and adequately addressing the privacy related concerns this may raise.
    • Ensure that policies are kept up to date and being followed, for example through regular audits to ensure employees are maintaining appropriate physical distance.
    • Respond appropriately to employee concerns or refusals to work due to workplace health and safety concerns, including developing policies in advance in consultation with employers’ joint workplace health and safety committees or other employee representatives and appropriately implementing additional policies and controls to address hazards identified by employees on an ongoing basis.
    • Check with vendors, suppliers and landlords on measures they have implemented to manage COVID-19 related risks.

Evaluate policies and procedures regularly

  • Review policies, practices and procedures regularly and assess whether they are achieving the desired outcome.
  • Update policies and procedures regularly as the situation and available guidance changes.

Personal protective equipment (PPE) for employees – face masks, gloves and eye protection

Where hazards related to COVID-19 cannot be eliminated through administrative and engineering controls, employers may consider the use of PPE in the workplace. PPE, which controls the hazard at the employee level, includes measures such as face masks, gloves and eye protection. Provincial governments have advised that PPE should only be used after all other controls have been considered and all feasible measures have been implemented (for example, refer to the following guidance from the Government of Alberta and the Government of Ontario).

It is imperative that employees 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. Regardless of the measures that are taken, it is important to ensure that safety measures are informed by governmental and public health guidance.

Requiring the use of face masks, in particular, has been a common consideration for employers contemplating a return to the physical workplace. The current advice from Canada’s Chief Medical Officer is 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.

The Public Health Agency of Canada recommends wearing a non-medical mask or face covering in public places, especially crowded ones, when physical distancing isn’t possible. As of the date of this guide, the province of Quebec has introduced provincial legislation requiring masks mandatory in public. Several municipal jurisdictions in Canada have also passed by-laws making face masks mandatory in public. For example, as of the date noted at the top of this Guide, in Toronto, most employees working in retail stores, grocery stores, malls and shopping plazas, restaurants and bars, recreation facilities, personal services settings, common areas in hotels, and community centres, among others, are required to wear face masks or face coverings when in public enclosed spaces (see here for information on the Toronto Mandatory Mask or Face Covering Bylaw).

Health Care Professionals have made strong recommendations for mandatory face mask coverings, and because municipalities have for the most part lead the changes by introducing mandatory face mask by-laws, changes to the applicable laws on mandatory face mask coverings are rapidly evolving and may outpace the regular updates to this publication. Accordingly, employers should contact a member of the Osler Employment & Labour group for up to date advice on applicable municipal and provincial laws regarding mandatory face mask laws in jurisdictions in which they operate.

If employees are required or encouraged to wear masks in the workplace, the employer 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). Further, in workplaces where employees are required to wear masks pursuant to the Toronto Mandatory Mask or Face Covering Bylaw, the employer must:

  • Create a mask policy.

  • Communicate the mask policy to staff and customers.

  • Train staff on the policy and who is exempt.

  • Require that all staff, customers or visitors wear a mask indoors, with some exceptions, including children under two years of age, people with certain health conditions, and employees in designated areas or protected by a physical barrier.

  • Post signs at all entrances reminding everyone to wear a mask.

Note also that face masks and coverings are distinct from plastic face shields, which are generally not accepted as substitutes for non-medical masks.

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.

Ontario’s Workers Health & Safety Centre (WHSC) notes that gloves are not always necessary but may be recommended for employees who will be in contact with someone who is ill or a surface that is contaminated. Employees should understand that gloves are not a substitute for hand hygiene (i.e. proper and frequent hand washing or using hand sanitizer) or for appropriate social distancing measures.

How to handle symptomatic employees

Employers should develop 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. Such a plan could 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, including notifying other employees of potential exposure. Employers should also be aware that they may have an obligation to report COVID-19 transmission in the workplace to their provincial health authorities.

Employees who appear to have symptoms (for example, 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 an individual does not have their own transportation, the employer should support them in arranging transportation home. Individuals should avoid taking public transit if at all possible. In fact, symptomatic or sick individuals are prohibited from taking public transit in certain provinces, including Alberta. If an employee will use a rideshare service to get home, it may be necessary to provide the employee with a mask and direct the employee to ensure that the vehicle’s windows are rolled down to improve ventilation.

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 is unable to 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.

Accommodating employee requests not to return

There are a variety of unique challenges employees are facing and there are a number of reasons a worker may be unwilling or unable to return to work. Employers should consider and develop policies for the following situations:

  • Higher risk employees: Certain individuals may be at greater risk of having more severe complications if they become infected with COVID-19. According to the Government of Canada, individuals at higher risk include older adults, people with weakened immune systems, and people with medical conditions including heart disease, hypertension, lung disease, diabetes and cancer. Recommendations for higher risk employees may include implementing:

    • A self-disclosure policy whereby employees can disclose that they are at a higher risk (without disclosing any personal details or sensitive medical information).

    • Mitigation measures if the employer is or becomes aware that an employee is at higher risk (for example, working from home).

  • Employees with childcare issues or caring for a sick relative: In some provinces, employees are eligible for job protected leaves if they are required to provide care to a person for a reason related to COVID-19 (i.e. school closure or sickness). If an employee requests to take a certain unpaid statutory leave of absence and meets the qualifying requirements of that statutory leave, the employer must grant it and may be precluded from terminating the employee’s employment for the duration in the leave. For employees making such requests, employers may consider:

    • Permitting the employee to work from home, if possible.

    • Whether the employee is eligible for paid leave in accordance with the employer’s existing contracts, policies and practices.

For more details regarding statutory leaves and options for employers, please see our Quick Reference Guide for Employers.

Employees concerned about workplace safety: Subject to applicable OH&S legislation, workers have a statutory right to refuse work if the worker believes on reasonable grounds that the work constitutes a danger to the worker’s health and safety. OH&S legislation varies by jurisdiction, but requirements related to work refusals generally include the following steps:

  • the employee must report the hazard to the employer;

  • the employer must take any necessary corrective action in a timely manner to address the reported hazard;

  • if an employee believes their workplace is still unsafe, the employee may make a complaint to the OH&S authorities in their jurisdiction; and

  • OH&S officers have authority to enforce OH&S legislation in a number of ways, including conducting inspections, issuing orders, writing violation tickets and issuing administrative penalties.

    Employers should consult legal counsel where an employee has exercised their right to refuse to work to inform themselves of the applicable procedure in their jurisdiction.

Other employees may have non-specific health concerns regarding the general risks associated with COVID-19, including with respect to taking public transit and other non-workplace matters. In these cases, no specific statutory duties may be triggered, but employers should strive to treat employees consistently in responding to these types of concerns.

Employers should ensure that their accommodation policies and practices address these issues fairly and in accordance with their legal obligations pursuant to applicable human rights legislation. As we noted in our Quick Reference Guide for Employers, human rights commissions across Canada have published policy statements and general principles regarding COVID-19 and an employer’s human rights obligations. Human rights commissions within Canada have provided very clear guidance 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). See, for example, Alberta’s guidance here.

Employers should consider developing a decision matrix regarding employee objections to returning to the workplace so that legal risks are identified and the employer complies with its legal objections in responding to all such objections.

Looking ahead: Adjustments to policies and contracts as a result of COVID-19

In conjunction with addressing workplace safety issues as described above, it will be important to consider what workplace policies and practices need to be updated, supplemented or replaced as a result of the COVID-19 pandemic. In addition to adapting workplace health and safety polices to the “new normal” as described above, employers should consider if any of their policies need to be updated. For example:

  • Travel: Earlier in the year, we saw many employers scrambling to amend their travel policies to provide for travel restrictions and quarantine periods. These types of policies will continue to be important in the coming months, especially as countries start reopening their borders and business and personal travel resume.

  • Time off: Most employers' sick policies do not sufficiently address considerations related to COVID-19. For example, time off during quarantine periods should be expressly addressed. Time off policies should be clear on whether leaves of absence will be paid or unpaid. Various provinces have introduced amendments to job protected leaves as a result of COVID-19 and employers’ policies will have to be adjusted to comply with these amendments.

  • Work from home: As described above, working from home is likely to be a tool that employers use to maintain workplace safety going forward. Work from home policies should address mandatory and optional work from home arrangements (as applicable) and considerations related to security, privacy, and acceptable use of company equipment. Whether any current work from home arrangements will be time-limited to the current situation involving COVID-19 should be expressly set out in the employer’s policies.

Employment contracts should also be reviewed to ensure they appropriately address various issues which the COVID-19 pandemic has brought to the forefront, such as temporary layoffs. Employers may also want to consider whether their employment contracts have effective termination clauses, especially in light of recent important court decisions (such as those discussed here), as well as provisions regarding changes to duties, compensation, and work location.

Credit:

Osler, Hoskin & Harcourt LLP, Brian Thiessen, Kelly O’Ferrall, Catherin Hammill and Lindsay Hofer (via Lexology.com on July 23, 2020)

 

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NEW 10-DAY PAID LEAVE OF ABSENCE IF YOU HAVE COVID SYMPTOMS - THE FEDS' NEW SAFE RESTART PROGRAM EXPLAINED.

Under the federal government’s new $19 billion Safe Restart Agreement, employees who do not have paid sick leave to remain at home when they have COVID-19 or its symptoms will be given temporary income support that will provide each worker with a job-protected leave of absence of ten paid sick days related to COVID-19.

Each province and territory will have to establish the leave for its own jurisdiction by enacting its own regulation or legislation.

Other priorities of the Safe Restart Program investment include:

  • testing, contact tracing, and public health data management;

  • support for the health care system capacity to respond to a potential future wave of COVID-19, and address needs and gaps in support for people experiencing challenges related to mental health, substance abuse, or homelessness;

  • protections and supports to control and prevent infections in seniors and other vulnerable populations, e.g., addressing staffing issues in long-term care, home care, and palliative care facilities and services;

  • procurement of personal protective equipment;

  • funding to enable municipalities to deliver essential services, e.g., public transit; and

  • ensuring the availability of safe child care for parents returning to work.

Federal legislation has not yet been passed to authorize this investment.

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COURT DEALS ANOTHER BLOW TO EMPLOYERS - BEWARE - EVEN A REMOTE POSSIBILITY OF VIOLATING ONTARIO'S ESA WILL INVALIDATE YOUR EMPLOYMENT CONTRACT. NEED YOUR CONTRACTS AUDITED? CALL US.

In a recent wrongful dismissal case, the Ontario Superior Court of Justice held that a potential violation of the Ontario Employment Standards Act, 2000 (the “ESA”), no matter how remote, will render a termination clause in an employment agreement void and unenforceable.

In this case, the employee was a construction employee employed by Canaan since 2012.

On November 10, 2015, he signed an employment agreement with Canaan, which contained a termination provision that limited his entitlement to the minimum notice upon termination as set out in the ESA. The termination provision did not comment on severance pay or benefits continuation. It further indicated that given that the employee was a construction employee, he was not entitled to any notice or pay in lieu of notice upon termination.

On October 10, 2017, the employee was placed on a temporary layoff. He was never recalled back to work and he was not provided with any pay in lieu of notice.

A few months later, in 2018, the employee commenced an action seeking damages for wrongful dismissal.

Canaan argued that the employee was not entitled to damages for wrongful dismissal as: 1) the employment agreement absolved Canaan from any requirement to give any notice of the lay-off, or pay in lieu of notice; and 2) given that the employee was a construction employee, Canaan had no obligation under the ESA to give notice or termination pay in lieu thereof.

Under the ESA, construction employees are not entitled to notice of termination or termination pay. Throughout his employment with Canaan, the employee was employed as a construction employee.

The Ontario Superior of Justice disagreed with Canaan and concluded that the employee was entitled to notice of termination or pay in lieu thereof, and that such notice was not limited by the ESA. In other words, the employee was entitled to reasonable notice of termination at common-law.

The Ontario Superior Court of Justice held that the termination provision in the employment agreement potentially violated the ESA in the following two ways:

  1. If the employee’s position changed to something other than a construction employee in the future, i.e. a position not exempt from termination pay, the termination provision would be unenforceable as pursuant to his employment agreement he was not entitled to benefits during the statutory notice upon termination.

  2. If Canaan grew in size, employed more than 50 employees and discontinued its business or had a payroll of more than 2.5 million, the employee would be entitled to severance pay (irrespective of his job description). The termination provision of his employment agreement disentitled him to this future benefit.

These two potential violations of the ESA rendered the termination provision unenforceable.

This decision is important as employers are now required to contemplate the future of its business and its employees in a way that addresses future compliance with the minimum standards prescribed by the ESA. Just because an employee does not have benefits, or, just because a business is small and therefore is not obliged to provide statutory severance pay, is no reason to not contemplate these statutory concepts in an employment agreement. This decision once again is a cautionary tale to have employment agreements reviewed periodically by legal counsel.

The Case

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

Credit

Torkin Manes LLP - Shreya Patel [via Lexology.com on July 22, 2020] 

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NEW BAIT MANAGEMENT SYSTEM ANNOUNCED - TO BETTER PROTECT THE RIVERS/LAKES IN THE CKL. WHAT YOU NEED TO KNOW TODAY.

The Ontario government has now released its final bait management strategy to protect the province's lakes and rivers from the threat of invasive species and fish diseases. As part of this new strategy, the government will be establishing four bait management zones to limit the movement of live bait across the province.

Live bait that is harvested in one area of the province is often shipped, sold, and later used in another region. If unused bait is not disposed of properly, invasive and other illegal bait species that may be mistakenly mixed in with the bait, or fish infected with disease, have the potential to establish new populations or infect other fish in the new waterbody.

To prevent the spread of invasive species and fish diseases through the movement of live bait, four bait management zones will be established across the province. This will limit the movement of most bait to the same bait management zone where it was harvested. Individual anglers who wish to use live bait outside of their own bait management zone will be required to purchase bait from a licensed commercial bait operator in the zone where they will be fishing.

The final Sustainable Bait Management Strategy, posted on the Environmental Registry of Ontario, is a result of extensive engagement with bait operators, stakeholder groups, the public, and Indigenous communities. They provided input on key elements related to the use and movement of bait, the type of bait allowed, and administrative improvements.

DID YOU ALSO KNOW

  • Ontario’s bait industry is estimated to be worth $23 million per year.

  • In 2020-2021, Ontario is investing over $2 million to support ongoing research, monitoring, and management of invasive species across the province.

  • Ontario is the only jurisdiction in Canada that has standalone invasive species legislation. The Invasive Species Act provides legislative tools to prohibit and restrict certain invasive species and carriers that facilitate the movement of invasive species.

  • Protecting our environment from invasive species by working with partners and other governments and using tools to prevent, detect and respond to invasions is a commitment under the Made-in-Ontario Environment Plan.

  • Anglers spend more than $1.6 billion annually in Ontario and support jobs in many rural and northern communities that depend on recreational fishing.

  • The use of bait is one route for the potential spread of fish-based diseases (e.g., viral hemorrhagic septicemia [VHS]) and invasive species (e.g., round goby) across Ontario.

Additional Resources:

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OUR NEW MADE-IN-ONTARIO INTELLECTUAL PROPERTY PLAN - KEEPING INNOVATION IN THE CKL HOMEGROWN AND PROTECTED.

The Ontario government recently announced a made-in-Ontario Intellectual Property Action Plan to help ensure the tremendous social and economic benefits of taxpayer-funded research and innovation stays right here in the province.

In addition, the government unveiled the second round of research projects approved and supported through the $20 million Ontario COVID-19 Rapid Research Fund.

Through these efforts, researchers will be working to find ways to prevent, detect and treat COVID-19.

The government is hoping to strengthen Ontario's intellectual property (IP) position through the Intellectual Property Action Plan.

The plan is intended to drive the province's long-term economic competitiveness by prioritizing IP generation, protection, and commercialization.

The government is also creating the Special Implementation Team on Intellectual Property (SITIP), which will be comprised of the IP experts who previously served on Ontario's Expert Panel on Intellectual Property.

The team will provide advice on the implementation of the Intellectual Property Action Plan, including the commercialization of research and IP in the province's post-secondary institutions and innovation centres to ensure that Ontario is open for jobs and open for business.

Together, Ontario's SITIP and Intellectual Property Action Plan will respond to the report prepared by the Expert Panel on Intellectual Property and will:

  • Work with postsecondary institutions and research institutes to strengthen mandates related to commercialization entities within their organizations;

  • Strengthen Ontario's IP literacy by developing standardized, web-based basic and advanced IP education curriculums;

  • Create a centralized provincial resource entity that will increase access to sophisticated IP expertise; and

  • Develop a governance framework for organizations supporting entrepreneurial and innovation activities, which incorporates IP considerations.

The post-secondary, research and innovation sector will also take a leading role in Ontario's economic recovery and future prosperity. As part of its strategy to strengthen the research and innovation economy, the Ontario government is funding an additional 20 proposals that were submitted in response to the government's $20 million Ontario COVID-19 Rapid Research Fund. In May, 15 projects were announced as part of the first round and they are focusing on areas such as vaccine development, diagnostics, drug trials and development, and social sciences.

The government is also committing funding to help commercialize the Rapid Research Fund projects here in Ontario, ensuring that taxpayer-funded research benefits Ontarians first.

DID YOU ALSO KNOW

  • The postsecondary education sector is a key source of research, innovation and commercialization, making it one of the leading contributors to Ontario’s productivity and economic growth. Forty-three per cent of all research in Canada is undertaken in Ontario with an economic impact of $85.2 billion since 2011.

  • The government created an Expert Panel on Intellectual Property in May 2019 to provide advice on the commercialization of research and IP in Ontario’s postsecondary institutions and recommend strategies for improved generation and commercialization of research and IP. The panel submitted its report in February 2020.

  • The $20 million Rapid Research Fund was created as an immediate response to engaging the research community on ways to fight COVID-19. Where relevant, a portion of these funds will be used to cover costs associated with licensing and commercialization, including patenting of the valuable IP generated by successful projects to ensure any economic outcomes from these proposals benefit Ontario’s economy, workers and researchers.

  • As part of its summer consultations, the government will seek feedback from colleges, universities, research institutes and other key partners to explore how best to support researchers and ensure that discoveries made in Ontario benefit Ontarians and the Ontario economy.

  • According to a recent Canadian Intellectual Property Office report, small and medium-sized enterprises (SMEs) aware of or holding registered IP rights are more likely to have expanded, or intend to expand, to domestic and international markets. The report also finds that just two per cent of Canadian SMEs hold at least one patent.

  • The Ontario government has an existing memorandum of understanding with Medical Innovation Xchange (MIX) to provide non-medical manufacturing companies with free support as they retool to provide essential supplies and equipment to health care facilities during COVID-19.

Background Information

Additional Resources

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"PAYDAY LOANS" TARGETED BY ONT. GOV. DURING COVID RECOVERY - CAPPING OF INTEREST RATES AND NSF CHARGES.

The Ontario government is proposing changes that would provide additional protection for payday loan borrowers by capping interest rates and fees on defaulted loans, ensuring that workers and families who use payday loan services can keep more of their hard-earned money.

The changes were included in the COVID-19 Economic Recovery Act, 2020.

Proposed amendments to the Payday Loans Act, 2008, would cap the interest rate that lenders can charge on payday loans that are in default.

Lenders would not be permitted to charge interest in excess of 2.5 per cent per month (non-compounded), providing rate relief to borrowers unable to repay their loans on time.

The government would also establish a maximum fee of $25 that may be charged by lenders for dishonoured or bounced cheques or pre-authorized debits. This measure would protect borrowers from having to pay high fees while already facing financial hardship.

If passed, this would be the first time Ontario has taken action to protect borrowers in default from annual interest rates as high as 60 per cent and to establish a maximum fee that may be charged for dishonoured payments.      

Learn more about other supports provided by the Ontario government by visiting COVID-19: support for people.

Quick Facts: 

  • Ontario would join six Canadian jurisdictions that have similar maximum interest rates on payday loans in default, including British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick, and Newfoundland and Labrador.

  • Payday loans are the most expensive form of consumer loans in Ontario.

  • Payday lenders typically have to be repaid two weeks after borrowing the money.

  • The government is also conducting a review of the Consumer Protection Act — the first comprehensive review in almost 15 years.

  • As part of the review of the Consumer Protection Act, the government will consider how to better protect vulnerable consumers who use alternative financial services that are regulated under that act.

Additional Resources

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TRAVEL INSURANCE DENIED - CKL SNOWBIRDS' NIGHTMARE - TIPS FOR AVOIDING DENIAL OF YOUR TRAVEL COVERAGE, IF AND WHEN YOU RETURN TO FLORIDA (OR OTHERWISE TRAVEL AGAIN).

It’s every snowbird’s nightmare.

Elderly Mr. X from Ontario bought travel insurance through Manulife before departing for Florida for a winter stay.

He answers questions via telephone with Manulife.

He answered “no” to questions about prior conditions and treatment, seemingly without giving it enough careful consideration.

Manulife emailed him a copy of the completed application for verification.

Mr. X verified it.

In Florida, he became ill. He incurred about $130,000 UDS in medical expenses.

Manulife denied the coverage, on the basis that he misrepresented his prior history in his application. 

Mr. X died.

His estate tried to sue Manulife for the coverage.

His estate lost.

The Court reviewed the Ontario Insurance Act and other applicable law.

The Court concluded that Manulife’s application process was lawful and upheld it – no insurance coverage.

The lesson here for anyone applying for new insurance, particularly travel insurance to go to the U.S. if when that opportunity arises again, including if you already have insurance and before you travel?

  • Listen to the questions carefully

  • Disclose every prior existing condition or treatment (to the extent you can recall it)

  • Double check the written application for verification after you receive it

  • Review your current insurance application to ensure it is accurate and complete

  • Double check you have COVID-19 testing and treatment coverage, if needed

While the Court is unlikely to require every application for insurance disclosure every medical issue in that person’s life historically, it will require that anything of material signifciant be disclosed, which could reasonably impact an insurance company’s decision to offer insurance to the applicant.

Therefore, treat the application process seriously, even if it seems overly informal online, or that the insurance company doesn’t seem overly concerned. They will deny coverage, if that opportunity is available to them.

The case:

Estate of Donald Farb v. Manulife, 2020 ONSC 3037

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NEW CHANGES TO THE WAGE SUBSIDY - 30% RULE GONE - NEW SLIDING SCALE APPLIES - TOO LITTLE, TOO LATE FOR OUR CKL BUSINESSES?

The requirements for the Canadian Emergency Wage Subsidy have been loosened for employers in the CKL. 

They no longer need to prove a 30% or greater revenue setback or reduction to qualify for the CEWS. We are now in period 5 of the CEWS.   

Rather, a new sliding scale approach will prevail.

What you need to know: 

  • the CEWS program is extended to December 19, 2020;

  • it is now available to any qualifying employer that experiences any level of reduction in revenue (not only a 30% reduction); ;

  • employers are eligible for a base subsidy amount proportional (or of equal value) to their revenue decline, up to the maximum subsidy rate;

  • the maximum base subsidy rate is reduced from 75% to 60% for periods 5 and 6 and will continue to decrease gradually to 20% by period 9 (note: this is period 5); 

  • however, employers that qualified for the 75% subsidy under the current/existing program rules will remain entitled to that higher rate for periods 5 and 6, respectively;

  • employers experiencing a reduction of more than 50% in their three-month, rolling average of revenue are entitled to an additional CEWS “top-up” rate of up to 25%;

  • employers may re‑elect between the year-over-year and alternative revenue drop methods. 

More details are promised.Regrettably they are scant at this time. 

These changes are expected to co-ordinate upcoming announcement to phase out the Canada Emergency Response Benefit, shifting the focus more on subsidizing employers to re-start or continue employ, rather than individuals, some of whom may prefer to remain on the CERB rather than return to work. 

 

 

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CKL FARMERS - MORE FINANCIAL SUPPORT - UPPING THE RISK MANAGEMENT PROGRAM. TODAY'S UPDATE.....

The Ontario government is expanding the Risk Management Program a year earlier than planned by $50 million for a total of $150 million annually.

This funding supports farmers with unforeseen challenges such as fluctuating market prices, extreme weather events like flooding or drought, and disease.

Approximately 80 per cent of eligible commercial production in the cattle, hog, sheep, veal, grains and oilseeds, and edible horticulture sectors in Ontario is covered by the provincial Risk Management Program.

The increased investment in the Risk Management Program is in addition to a $15 million Enhanced Agri-food Workplace Protection Program.

Farmers and other operations have access to cost-share funding to help enhance health and safety measures for employees, such as purchasing personal protective equipment, medical testing equipment, enhanced cleaning and disinfection, and temporary or permanent modifications to enhance physical distancing. Support is also available for farmers who experience unexpected costs for housing and transportation as a result of a COVID-19 outbreak on their farm.

DID YOU KNOW

  • Applications for the Risk Management Program will reopen today to allow eligible farmers the opportunity to apply to the program. The deadline to apply closes at midnight on July 30th, 2020.

  • Producers should contact the Ministry of Agriculture, Food and Rural Affairs’ delivery agent, Agricorp, to enroll in the Risk Management Program and AgriStability or to discuss their individual files.

  • In response to COVID-19, the federal and Ontario governments have added labour as an insured risk to Production Insurance for the 2020 growing season.

  • Canada and Ontario have also announced up to $10 million of support for beef and pork sectors through AgriRecovery.

  • Ontario has an estimated 49,600 farms that contribute an estimated $7.6 billion annually to the province’s economy.

More Information

Additional Resources

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SAFE RESTART - $19B FED FUNDING TO WEATHER THE STORM. TODAY'S UPDATE.....

The federal government has announced a federal investment of more than $19 billion to help provinces and territories safely restart their economies and to make us hopefully more resilient to possible future waves of the virus.

This investment, through the Safe Restart Agreement, will help address the key priorities, agreed upon by Canada’s First Ministers, for the safe restart of Canada’s economy over the next six to eight months. It will support measures to increase testing and contact tracing of the virus to protect Canadians from a future outbreak, and support the capacity of our health care systems, including services for people facing mental health challenges. It will also assist with the procurement of personal protective equipment to help our essential workers, and in protecting the most vulnerable, like our seniors.

The agreement will also help get funding quickly to municipalities so they can deliver essential services that Canadians rely on every day, like public transit. In addition, it includes actions to help Canadian workers during this challenging time, such as ensuring the availability of safe child care to help parents returning to work, and providing income support for people who do not have paid sick leave so all Canadians can stay healthy.

During this time of uncertainty, the Government of Canada is putting Canadians first by working together with our provincial and territorial partners to lay the groundwork to keep our communities strong and healthy, and ensure our economy is resilient.

 

Quick Facts

  • New federal funding will address seven priority areas:

    • enhanced capacity for testing, contact tracing, and data management and information sharing to mitigate future outbreaks.

    • investments in health care to respond to the pandemic, including support for Canadians experiencing challenges with substance use, mental health, or homelessness.

    • support for vulnerable Canadians – including those in long-term care, home care, and palliative care – who are at risk of more severe cases of COVID-19.

    • funding to secure a reliable source of personal protective equipment, and to recover some of the costs from previous investments made by provincial and territorial governments.

    • support to ensure that safe and sufficient child care spaces are available to support parents’ gradual return to work.

    • joint funding with the provinces and territories to support municipalities on the front lines of restarting the economy, including by putting in place precautions for public spaces and essential services to reduce the spread of the virus, as well as a dedicated stream of funding for public transit.

    • a temporary income support program that will provide workers who do not have paid sick leave with access to 10 days of paid sick leave related to COVID-19.

  • To access the funding, each province and territory will need to outline how they will invest these funds.

  • New federal investments for the safe restart of our economy are in addition to previous funding provided to provinces and territories and Canadians, as we deal with the impacts of COVID-19. This includes:

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CKL BUSINESSES - EMERGENCY WAGE SUBSIDY (CEWS) EXTENDED TO DECEMBER - YOUR UPDATE TODAY. New Page

The Canada Emergency Wage Subsidy (the "CEWS") intended to assist and support businesses that had been impacted by the COVID-19 pandemic.

The aim of the wage subsidy is to enable businesses to rehire workers previously laid off as a result of COVID19, help prevent further job losses and better position companies to resume normal operations.

In May the program was extended to August 29th.

Now, the federal government announced that it will be extending the emergency wage subsidy program to December 2020.

The aim of the program is to provide greater certainty and support to businesses as the economy is restarted.

The program covers 75% of wages, up to a weekly maximum of $847 for workers at eligible companies and non-profits that have been affected by the economic slowdown caused by the COVID-19 pandemic.

To be eligible for the subsidy, the employer must have experienced a reduction in revenue during the time period during which the subsidy is claimed of 30% and have a CRA payroll account as of March 15, 2020.

Eligibility requirements remain the same with the extension of the program.

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UPDATED (NEW) DIRECTIVES FOR MASKING FROM THE HEALTH UNIT - TODAY'S UPDATE.

Our Health Unit has updated its making directive for "commercial establishments" and indoor, public places: 

  • Indoor mask use now applies to any place of business or facility that is indoors and currently open to the public under Stage 3 . Public settings include: retail stores, churches/places of worship, public libraries, real estate open houses, personal care services (relating to the hair or body), restaurants/food courts, fitting rooms, driving instruction services, sports and recreation facilities, movie theatres, performing arts centres, casinos/bingo halls, and museums/cultural centres.

  • While face coverings must be worn in most indoor places and situations open to the public, the exception is when patrons are ‘in place’ and no longer ‘roaming’ inside the premises. In the case of eating inside a restaurant, patrons would not have to wear masks if sitting at their table (entering, exiting and walking around the food premise would require masks). In gyms and fitness clubs, masks would be worn in change rooms, washroom and waiting areas, but not when people take part in an activity or sport. At indoor weddings, funeral services, or religious services/rites/ceremonies, attendees would have to wear masks until seated with a secured distance of 2 metres (6 feet) from others. Movie patrons and theatregoers would also have to remain masked until they were seated with a secured distance of 2 metres (6 feet) from others.

  • People who remain exempt from wearing masks indoors include: children under 2; children under age 5 (developmentally or in actual years) who refuse to wear masks; individuals who cannot remove a mask without help; and people with medical conditions like respiratory disease or cognitive difficulties.

Businesses/facilities are expected to use “best effort” to ensure patrons and members of the public wear a mask by pointing out the Health Unit instructions.

No one should be denied service if they cannot wear a mask. However, everyone should try to be understanding of those individuals who have a legitimate reason not to wear a mask.

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WHAT IS MY "CREDIT SCORE"? WHY DO I CARE? HOW DO I FIX IT? HELP AVAILABLE HERE.

WHAT IS MY CREDIT SCORE AND WHY DO I CARE ABOUT IT?

Your “credit score” ranges from 300 to 900. It is used to evaluate your creditworthiness.

For example, credit card companies, banks, landlords and other lenders may use your score to determine the risk factor when loaning you money, renting you a property or deciding on the amount of credit to give you.

Your credit score is calculated using a formula based on your credit report.

These reports are created by credit bureaus— namely, Equifax and TransUnion.

They collect, store and share information about how you use credit.

Your credit score will change over time with your actions and assets.

Your credit history follows you everywhere, unfortunately.

Each time you pay a bill, take out a loan or open a card or account, it is likely to impact your credit report.

What’s more, if you miss a payment, or default on a loan, or max out an account, it will likely circle back to you and be traced to your credit score, negatively.

Most of us fail to realize our credit scores may have been negatively impacted.

It can be a pernicious, insipid process.

Usually each lender has its own minimum credit score that is required to lend, meaning that if your credit score is too low, you might not be approved.

However, if your credit history is adequate, you may be able to get a lower interest rate on loans, which can save you a lot of money over time.

Credit reports are also important when looking for signs of identity theft or fraud.

At least once a year, you should check to make sure someone has not tried to open credit cards or other loans in your name.

WHAT DO I AVOID TO KEEP GOOD CREDIT?

You get credit points for keeping up to date on your obligations. You get negative points for failing to do so. 

Avoid these things:

  • - regularly missing or getting behind on payments

  • - reaching or going over your credit limit

  • - bankruptcy and consumer proposals

  • - debts sent to a collection agency

  • - the amount of your outstanding debts – keep it reasonable

HOW DO I FIX MY CREDIT SCORE?

The best way is to contact a credit counselor, who could guide you on the best steps to take.

 

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WELCOME TO STAGE 3, CKL. WHAT YOU NEED TO KNOW.

The Ontario government has announced nearly all businesses and public spaces will reopen in Stage 3 of the province's reopening framework with public health and workplace safety measures and restrictions in place.

As part of the Stage 3 reopening, Ontario will be increasing gathering limits for those regions entering the next stage to the following:

  • Indoor gathering limits will increase to a maximum of 50 people;

  • Outdoor gathering limits will increase to a maximum of 100 people;

  • Gathering limits are subject to physical distancing requirements.

Public gathering limits apply to indoor and outdoor events, such as community events or gatherings, concerts, live shows, festivals, conferences, sports and recreational fitness activities, fundraisers, fairs, festivals or open houses. A two metre distance must still be maintained at such events.

Regions remaining in Stage 2 will maintain the existing gathering limit of 10. Social circles in all stages at this point will also be kept to a maximum of 10 people province-wide, regardless of stage.

The Chief Medical Officer of Health, public health experts and other officials have advised the following, high-risk places and activities are not yet safe to open, even if a region has entered Stage 3, due to the likelihood of large crowds congregating, difficulties with physical distancing, or challenges maintaining the proper cleaning and sanitation required to prevent the spread of COVID‑19:

  • Amusement parks and water parks;

  • Buffet-style food services;

  • Dancing at restaurants and bars, other than by performers hired by the establishment following specific requirements;

  • Overnight stays at camps for children;

  • Private karaoke rooms;

  • Prolonged or deliberate contact while playing sports;

  • Saunas, steam rooms, bath houses and oxygen bars;

  • Table games at casinos and gaming establishments.

For more information on the restrictions that will remain in place during Stage 3, as well as the public health guidance necessary to keep the people of Ontario safe, visit Ontario.ca/reopen.

The province is committed to working closely and collaboratively with businesses and sectors not yet able to reopen or who are experiencing significant challenges for reopening due to Stage 3 restrictions. These businesses can visit Ontario.ca/reopen to work with the government on a reopening proposal that will enable them to safely resume or increase operations. Government and public health officials will review proposals and contact businesses for feedback or clarifications.

The following public health unit regions will be allowed to move into Stage 3 first, on Friday, July 17, 2020:

  • Algoma Public Health

  • Brant County Health Unit

  • Chatham-Kent Public Health

  • Eastern Ontario Health Unit

  • Grey Bruce Health Unit

  • Haliburton, Kawartha, Pine Ridge District Health Unit

  • Hastings Prince Edward Public Health

  • Huron Perth Public Health

  • Kingston, Frontenac and Lennox & Addington Public Health

  • Leeds Grenville & Lanark District Health Unit

  • Middlesex-London Health Unit

  • North Bay Parry Sound District Health Unit

  • Northwestern Health Unit

  • Ottawa Public Health

  • Peterborough Public Health

  • Porcupine Health Unit

  • Public Health Sudbury & Districts

  • Region of Waterloo Public Health and Emergency Services

  • Renfrew County and District Health Unit

  • Simcoe-Muskoka District Health Unit

  • Southwestern Public Health

  • Thunder Bay District Health Unit

  • Timiskaming Health Unit

  • Wellington-Dufferin-Guelph Public Health

Businesses and municipalities will be permitted to enter Stage 3 based on their region and, as in the previous stages, may choose to take more time before reopening. For a list of regions that will remain in Stage 2, visit Ontario.ca/reopen.

At the beginning of each week, the province will continue to reassess local trends in public health indicators, including rates of transmission, hospital capacity, progress on testing and contact tracing, to determine if additional public health unit regions can progress to Stage 3. The Chief Medical Officer of Health and other public health experts will continue to closely monitor the evolving situation to advise when public health restrictions can be further loosened or if they need to be tightened or reapplied.

As the province safely and gradually enters Stage 3, child care centres and home child care providers across Ontario will be able to continue to operate with strict safety and operational requirements in place.

Beginning on July 27, 2020, child care centres will be permitted to operate with cohorts of 15 children, which is an increase from the current cohort cap of 10. This change will allow parents to return to work, and bring the child care sector to approximately 90 per cent of its operating capacity before the COVID-19 outbreak.

The government, in partnership with health and safety associations, has released over 170 guidance resources at Ontario.ca/COVIDsafety to help employers in multiple sectors ― including fitness, restaurant and food services, and the performing arts ― keep spaces safe for workers and customers. Guidance will be available for all spaces permitted to open in Stage 3. As they prepare to reopen, employers are strongly advised to review and implement appropriate measures to help protect their communities.

Based on community needs, some municipalities and local medical officers of health have implemented more restrictions or requirements, such as mandatory face coverings in commercial establishments and all indoor public places. Check your local public health unit's or local municipality's website.

DID YOU ALSO KNOW

  • The government invites businesses not able to open or resume full activities due to Stage 3 restrictions to visit Ontario.ca/reopen to submit a reopening proposal.

  • For questions on restrictions that will remain in place during Stage 3, review the Stage 3 Emergency Order on the emergency information portal or call the Stop the Spread Business Information Line at 1-888-444-3659.

  • The Ontario government has launched a website to provide businesses with information on personal protective equipment (PPE) suppliers. The Workplace PPE Supplier Directory has an up-to-date list of Ontario companies and business associations that are ready to supply PPE.

  • The government has also launched the $50 million Ontario Together Fund to support the development of proposals submitted by businesses and individuals through the Ontario Together web portal to help businesses retool their operations.

  • Free online workplace health and safety training is available through Employment Ontario for up to 100,000 job seekers, with topics such as infection control, conducting health and safety incident investigations, ladder safety, slips, trips and falls prevention. Contact an Employment Ontario service provider in your area to enroll.

  • Peter Bethlenfalvy, President of the Treasury Board, is leading a new committee focused on strengthening the work of the Ontario government following the COVID-19 pandemic. The committee will ensure public sector services are customer focused and digital- and data-driven, while increasing the speed of government operations and decisions.

  • Find sector-specific guidelines and return-to-sport resources to help facilities, trainers and athletes safely return to play and recreation activities in Ontario at Ontario.ca/returntoplay.

Additional Resources

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REAL ESTATE IS HEATING UP IN THE CKL, BUT REMEMBER THE RESTRICTIONS FOR OPEN HOUSES AND IF THERE IS A TENANT. WHAT YOU NEED TO KNOW.

As the buy/sell of residential and commercial real estate heats up again in the CKL, remember the restrictions that continue to apply during the provincial state of emergency: 

No “Open Houses”:

The Government of Ontario has prohibited the hosting of in-person open houses during the state of emergency.

In addition, RECO has strongly recommended that brokers and salespersons follow the direction of health officials by limiting showings to situations where they are necessary.

This means that you may only have physical access to a property at the final stages of consideration where historically, many buyers would walkthrough a property at the beginning of the consideration process.

Speak with your broker or salesperson regarding property showings, as access may be restricted and, in some cases, not permitted.

Can I Book Back-To-Back Private Showings?

This is an approach to discuss with your salesperson.

Hosting showings “back to back” may not be practical or convenient for everyone involved.

Speak with your representative to ensure that if multiple showings are scheduled for the same day that consideration has been given to establishing a process for sanitizing high-touch areas, like door handles and countertops, between visits. this will lessen the risk of transmission to you, your loved ones and visitors to your property.

Is There a Residential Tenant?

Showings should only occur with the tenant’s consent or in accordance with lawful notice provisions contained within the Residential Tenancies Act (RTA) which is enforced by the Landlord and Tenant Board (LTB). RECO has recommended that parties hold off on showings if they do not have the tenant’s consent.

Speak with your salesperson about what you can and may need to do to in the case that there are particular health concerns on the part of the tenant.

Many salespersons and brokerages have established protocols that respect the needs and concerns of tenants that will allow serious buyers to safely view the property.

If protocols are not already in place your salesperson may be able to negotiate a plan that will satisfy all parties. If they are unable to agree to terms that will allow a showing, you will need to make a decision on how comfortable you may be regarding finalizing a purchase without a showing.
 

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CHECK IN WITH YOUR EMPLOYEES DURING COVID-19 - WARDS LAWYERS' SAMPLE SURVEY TO USE FOR YOUR EMPLOYEES - MAKE SURE YOU KNOW HOW YOUR WORKPLACE IS DOING.

Businesses and orgs in the CKL – would it be a good time to collectively check in with your employees during the pandemic?

We do, regularly.

Here is a sample of how you might do so. These are questions we surveyed to our entire office, using surveymonkey.com.

You could modify your questions as necessary – this is general guidance only.

Every employee completes the survey online, through the app, and you get the results in a compact, easy-to-review format.

It’s mostly a multiple choice format. You can design your multiple chance answers depending on the information you want to obtain from your employees.  

Here you go………

Q1

The Firm has taken appropriate action in response to COVID-19

Strongly agree

Agree

Do not agree

Strongly disagree

Q2

The Firm has done a good job of sharing information regarding COVID-19

Q3

The Firm cares about my health and safety

Q4

I have confidence in the Firm's ability to overcome the challenges faced by COVID-19

Q5

I feel comfortable communicating concerns or making suggestions about COVID-19 to the Firm

Q6

Systems are in place to enable social distancing within the Firm

Q7

My co-workers are taking COVID-19 seriously

Q8

I am comfortable returning to work at this time

Q9

I understand the new health and safety protocols that have been put in place to address COVID-19

Q10

What were the TOP THREE biggest challenges you experienced while working remotely?

Childcare

Social isolation

General anxiety about the impact of coronavirus on my life

Q11

I would be more comfortable working from home if that option was presented to me

Q12

Is there anything more that the Firm could do to support your return to work? 

Q13

What is your single greatest work-related concern right now?

Q14

How worried are you about the impact of COVID-19 on you personally?

Q15

How worried are you about the impact of COVID-19 on the Firm?

Q16

What has the Firm done in response to COVID-19 that has positively impacted your work experience?

Q17

How confident are you that you have the right resources and benefits from the Firm to help support you through this period?

Q18

Do you have any questions about COVID-19 and its impact on the Firm that you would like answered?

Q19

How confident are you in the Firm's leadership team to make the right decisions to manage through this crisis?

Q20

Do you have any other feedback that you would like to share regarding the Firm's response to COVID-19?

 

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FIRING AN EMPLOYEE? JASON'S AND CALVIN'S TERMINATION CHECKLIST - CHECK THIS BEFORE YOU TERMINATE.

CHECKLIST – THE TERMINATION MEETING

In most cases, the termination should be communicated in a meeting with the employee at which they are advised of the termination and the reasons for it, and are provided with a termination letter.

Where the termination is for disciplinary reasons or for cause, ensure that the investigation is complete and that you have given the employee an opportunity to respond to the concerns or allegations before finalizing your decision.

BEFORE THE MEETING:

Make sure you have a private room set aside.

Make sure there is Kleenex in the room.

Ensure that all documentation is complete before the meeting.

The meeting should be held late in the day or first thing in the morning, if possible, early in the employee’s work week.

Be clear on what you will say and practice – keep it short and to the point.

AT THE MEETING:

If possible, try to have a second person (managerial) in the meeting to witness the termination.

Tell the employee clearly that her or his employment has been terminated and the date when the termination is effective.

Be clear and brief on the reason for the termination (e.g. poor performance, job elimination, disciplinary reasons, absenteeism, etc.).

Do not provide a long-winded explanation; clearly communicate that the decision has been made and that it is final. Do not get involved in a debate about the decision.

Hand the employee the signed letter of termination. This should spell out:

  • the reason for and the effective date of the termination (as communicated verbally);

  • any payments in lieu of notice and/or severance pay that are being offered;

  • the date on which benefits coverage will cease, if applicable; and

  • that any unpaid wages, vacation pay, etc. will be paid out.

  • Bring the meeting to a close in the appropriate manner depending on circumstances (e.g. thank the employee for service rendered and wish her or him luck; invite employee back to work area to pack-up belongings; request return of any property and/or ID, etc.).

  • If the staff member will be leaving immediately, ensure there are boxes available for packing personal items.

  • Under some circumstances it may be preferable to ask the employee to leave immediately and return after hours (later in the day/later that week) to clear out her or his desk without disrupting the company/business. This after-hours move should always be supervised.

  • Communicate termination to relevant co-workers. Craft communication to suit the circumstances and be professional.

ADMINISTRATIVE MATTERS:

There are certain administrative steps to take as part of the termination of an employee.  As much as possible, these steps should be undertaken or prepared prior to the termination. This may not be an exhaustive list, depending on your specific circumstances at the time:

Employer Property

  • Office keys/pass collected                                          Yes    No  N/A

  • Cell/Smart phone received                                         Yes    No  N/A

  • Employment manual/handbook                                  Yes    No  N/A

  • Client lists received                                                    Yes    No  N/A

  • Corporate credit card received                                   Yes    No  N/A

  • Company laptop/computer returned                            Yes    No  N/A

  • Parking pass/tags received                                         Yes    No  N/A

Access Cancellation:

  • Disconnect computer access (e-mail, networks, cell and data).

  • Employee’s voicemail removed.

  • Building alarm code changed, if necessary.

  • Change any computer access codes or passwords, if necessary.

  • Email address removed from staff list.

  • Name removed from time entry system (if applicable).

  • Make any needed banking information/authorization changes if needed.

Administrative Issues:

  • Desk cleared, available for replacement.

  • Name removed from staff phone listing.

  • Name removed from mail slot.

  • Update website/internal directories/phone directories.

  • Do any clients/third parties require notification?

  • Automatic email notification to alert senders and redirect emails (voice-mail as well).

  • Create back-up of computer files and e-mail.  

Benefits (if applicable):

  • Have insurance providers been notified?

  • Will insurance coverage continue? For how long?

  • When will retirement contributions (if any) be stopped?

Final Pay:

  • Final hours calculated.

  • Final paycheck prepared.

  • Ensure any outstanding vacation pay/lieu time is calculated and included in final pay.

  • Arrange for preparation and issuance of ROE.

This is a summary only, intended to be for your general information only.

We strongly recommend that you contact us, or other qualified employment law counsel, for specific advice that may apply to, or be helpful for, any:

  • termination of any employee, with or without cause;

  • suspension of any employee, with or without pay; 

  • workplace harassment/sexual harassment complaint; and 

  • workplace investigation of any kind,

before you initiate or take any steps, including to avoid a potentially costly misstep. 

© WARDS LAWYERSPC

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BEFORE ANYBODY IS TERMINATED, REVIEW JASON'S AND CALVIN'S PRE-TERMINATION CHECKLIST!

PRE-TERMINATION CHECKLIST

Terminating an employment relationship should not be decided upon without planning and consideration of potential obligations (and liability).

Liability for reasonable notice, or pay in lieu of notice, must be considered. 

Below is a checklist that will be helpful for you to review before a decision to terminate is made.

This checklist will also help to identify what potential obligations may be owing by you to the terminated employee.   

1.  Review the employee's letter of employment or employment agreement. Is there an enforceable clause for minimum notice under the Employment Standards Act, 2000? Is there a valid “for cause” termination clause?

2.    Review the circumstances of the employee's hire. Was the employee recruited?

3.    Review significant changes in relation to the employee's position, role, salary, location or other material terms of employment to determine if the substratum of the employment relationship has been amended or varied materially and, therefore, whether the employment agreement potentially no longer reflects current terms.

4.   Determine the termination date and calculate, if possible, what is owing to the employee for all accrued remuneration to that date, including salary, vacation pay, commissions, incentives and bonuses, if any.

5.   Is the termination for “just cause,” due to misconduct? If so, are there adequate documentary records of past issues and warnings? Have the relevant individuals been interviewed, and is there a record of those interviews? Has the individual been given an opportunity to respond and answer to any issues and allegations? Has the higher standard of “wilful misconduct” under the Employment Standards Act, 2000 been triggered?

6.   Compile all relevant codes of conduct or policies applicable to the termination and ensure that you have complied with your own policies. In addition, where applicable, ensure that you have evidence that the employee was aware of the policies.

7.   If the termination is for performance reasons, is there enough documentation to establish: (a) lack of performance; (b) progressive warnings related to failure or refusal to maintain performance at reasonable and objective standards; and (c) the consequences of failing to do so?

8.   Are there related medical or disability issues that need to be considered and accommodated?

9.   Are there other human rights or statutorily protected employment rights that need to be addressed (for example, return to work following maternity, parental, WSIB or emergency leaves)?

10. If the termination is not for just cause, what is the period of notice of termination required by agreement or by statute, or implied by common law?

11. Will the notice period be worked by the employee in whole or in part? If payment is to be made in lieu of notice of termination, will remuneration be continued or paid out? Calculate the statutory termination and severance pay, if applicable. Calculate the offered common law notice pay in lieu (or salary continuance), if any. Verify whether the employee has any accrued, but unpaid, vacation pay up to the proposed date of termination, including pro-rated. 

12. Consider any statutory and contractual obligation(s) to continue benefits during notice periods and any conditions or exceptions to such obligations.

13. Will the termination offer be made subject to mitigation or not subject to mitigation by the departing employee?

14. Review the target employee’s specific compensation terms and entitlements in the twelve weeks prior to the proposed termination date, at least. Are there any specific requirements related to pensions, RRSPs, LTIPs, stock options, etc.?

15. Are there any outstanding loans or advances to the employee?

16.  Are there company supplies, documents, confidential information, computers, keys, fobs, credit cards, automobiles, equipment or other property to be returned by employee?

17.  Are there post-termination employee obligations, including with respect to solicitation of customers or non-competition?

18. Are there client or competitor lists that need to be identified with reference to non-competition provisions?

19. Determine the appropriate timing for the meeting to provide notice of termination. Consider who should attend at that meeting. Is any security necessary?

20.  Consider issues relating to employment references and/or providing a confirmation of employment letter. Who will be responsible for post-termination employment references?

21.  Did the employee sign a confidentiality agreement and, if so, should that be confirmed, including any specific duty or reference to any specific confidential information?

Careful review and planning must be undertaken before any employee is terminated. Alternatively, a costly mistake may be made. 

_________________________________

This is a summary only, intended to be for your general information only.

We strongly recommend that you contact us, or other qualified employment law counsel, for specific advice that may apply to, or be helpful for, any of the following:

  • termination of any employee, with or without cause;

  • suspension of any employee, with or without pay; 

  • workplace harassment/sexual harassment complaint; and 

  • workplace investigation of any kind,

before you initiate or take any steps, including to avoid a potentially costly misstep. 

© WARDS LAWYERSPC

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NEW ONT. LEGISLATION TO KEEP EMERGENCY ORDERS IN EFFECT AFTER DECLARATION OF EMERGENCY ENDS - WILL IT PASS?

The Ontario government has now announced proposed legislation that, if passed, would ensure certain emergency measures continue once the provincial declaration of emergency has ended. 

According to a government press release, Bill 195 Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, would:

• continue emergency orders in effect under the Emergency Management and Civil Protection Act ("EMCPA") under the new legislation for an initial 30 days;

• allow the Lieutenant Governor in Council to further extend these orders for up to 30 days at a time, as required;

• allow the Lieutenant Governor in Council to amend certain emergency orders continued under the EMCPA if the amendment relates to:

    • labour redeployment or workplace and management rules;

    • closure of places and spaces or regulation of how businesses and establishments can be open to provide goods or services in a safe manner;

    • compliance with public health advice; or

    • rules related to gatherings and organized public events;

• not permit new emergency orders to be introduced through the legislation; and

• allow emergency orders to be rescinded when safe to do so.

The ability to extend and amend orders under the new proposed legislation would be limited to 1 year, unless extended by the legislature.  The current declaration of emergency is in place until July 15, 2020, subject to further extension by the government.

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A - Z. SIMPLE. EVERYTHING YOU NEED TO KNOW ABOUT NEW MANDATORY NON-MEDICAL MASKS IN THE CKL FOR BUSINESSES, INCLUDING ENFORCEMENT, REPORTING, MANAGING CONFLICT AND PENALTIES FOR NON-COMPLIANCE.

When Must I Wear A Non-Medical Mask?

Under instructions issued by the local Medical Officer of Health (the “MOH”), area businesses will have to have a policy in place that requires people to wear a non-medical mask or face covering before entering their commercial establishment. 

This applies to all owners and operators of commercial establishments currently open during Stage 2 of the province’s reopening.

The instructions have been issued under the authority of Ontario Regulation 263/20 under the provincial Emergency Management and Civil Protection Act (EMCPA).

When?

The requirement for non-medical mask or face covering use within local businesses will come into effect at 12:01 am July 13, 2020.

The use of masks will be required while the provincial Emergency Order remains in force or until such time that the MOH lifts the requirement.

What Businesses Does This Apply To? What Is An Establishment?

Under the Health Unit’s instructions, commercial establishments are premises that are openly accessible to members of the public and used for the purposes of offering goods or services for sale.

An establishment would include a mall or other structure containing commercial premises, including: retail stores, convenience stores, restaurants, personal services settings, grocery stores and bakeries, gas stations, indoor farmers’ markets, areas of mechanics’ shops/garages/repair shops, which are open to the public.

Who Does This Apply To?

If you own or operate a commercial establishment currently operating under Stage 2 of the provincial reopening, you must have policies in place to stop people from entering your establishment if they are not wearing a non-medical mask or face covering.

What If I Refuse?

Every operator of an enclosed public space will have a policy to ensure that no member of the public is permitted to enter or remain in the public areas of the enclosed public space unless they are wearing a mask in a manner that covers their nose, mouth and chin.

People in an enclosed public space who remove their mask for extended periods of time, will receive a verbal reminder of the requirement to wear a mask under these instructions.

The policy of the commercial establishment should be enacted and enforced in ‘good faith’ and should be used as an opportunity to educate about the use of non-medical masks or face coverings in indoor commercial establishments. Additional education and enforcement will be conducted by Health Unit staff, as well as local municipal bylaw and police officers.

Who is Exempted?

There are exemptions to the policy and a person will be exempt from wearing a non-medical mask or face covering in the premises if:

  • the person is a child under the age of two years; or a child under the age of 5 years either chronologically or developmentally and he or she refuses to wear a face covering and cannot be persuaded to do so by their caregiver;

  • the person is incapacitated and unable to remove their mask without assistance;

  • for any other medical reason, the person cannot safely wear a non-medical mask or face covering such as, but not limited to, respiratory disease, cognitive difficulties or difficulties in hearing or processing information; and

  • for any religious reason, the person cannot wear a non-medical mask or face covering or cannot cover the face in a manner that would properly control the source.

How Do I Make or Choose the Best Mask For Me?

In choosing a non-medical mask, ensure it is:

  • made of 2+ layers of tightly woven fabric (such as cotton or linen);

  • well-fitted with ear loops or ties;

  • a comfortable fit against your face and allows you to breathe easily without having to adjust it;

  • large enough to completely cover the nose and mouth without gaping; and

  • durable to allow you to frequently wash and dry it without losing its shape.

Other options for non-medical masks include wearing a bandana or scarf, or making one out of a T-shirt or a bandana.

The Public Health Agency of Canada also offers instructions on how to make a homemade face coverings.

Can a Business Refuse to Serve Me If I Refuse to Wear as Mask?

The implementation of the policy should be enforced in “good faith” and any person not wearing a mask will receive a verbal reminder from the staff of the establishment.

However, any commercial establishment can also assert Ontario’s Trespass To Property Act, RSO c. T.21 to disallow entry of any person who refuses to wear a non-medical mask – notice should initially be given to the person. 

In addition, business owners have a right at common law to exclude entry to any person who fails to lawfully comply with a health directive or order. 

How Will This Be Enforced?

Every owner/operator of a commercial establishment will have a policy to ensure that no member of the public is permitted to enter or remain in the public areas of the enclosed public space unless they are wearing a mask in a manner that securely covers their nose, mouth and chin.

Employees and operators will provide a verbal reminder to any customer entering the premises without a mask that the customer should be wearing a mask as a result of this directive.

Implementation of the policy will be enacted and enforced in ‘good faith’ and will be primarily used as a means to educate people on mask use in public spaces.

Public Health Inspectors from the HKPR District Health Unit, as well as municipal bylaw and local police officers will be involved in providing additional education and enforcement to operators of commercial establishments.

However, any commercial establishment can also assert Ontario’s Trespass To Property Act, RSO c. T.21 to disallow entry of any person who refuses to wear a non-medical mask – notice should initially be given to the person. 

In addition, business owners have a right at common law to exclude entry to any person who fails to lawfully comply with a health directive or order. 

Will Fines Be Levied for Non-Compliance? What Is The Penalty?

As noted above, implementation of the policy will be enacted and enforced in ‘good faith’ and will be primarily used as a means to educate people on mask use in public spaces.

As per Ontario’s Emergency Management and Civil Protection Act, those businesses that do not comply with the instructions may be liable for a fine of $750 to $1,000 for an individual, to a maximum of $100,000, or in the case of a corporation, not more than $10,000,000 for each day or part of each day on which the offence occurs or continues.

Can I Ever Remove My Mask In Public?

Members of the public are permitted to temporarily remove a mask for the following reasons:

  • receiving services (including eating or drinking when dine-in services are allowed), or

  • while actively engaging in an athletic or fitness activity including water-based activities.

Ensure you wash your hands using soap and water or an alcohol-based hand sanitizer before and after removing your mask or face covering.

Do I Report Local Business Not Requiring Customers to Wear Masks?

Yes.

For more information on the Health Unit’s instructions to commercial establishments to require the use of masks by patrons, or to report a non-complying business, call the Health Unit toll-free at 1-866-888-4577, ext. 5020.

How Do I Properly Use a Non-Medical Mask?

In choosing a non-medical mask, ensure it is:

  • made of 2+ layers of tightly woven fabric (such as cotton or linen);

  • well-fitted with ear loops or ties;

  • a comfortable fit against your face and allows you to breathe easily without having to adjust it;

  • large enough to completely cover the nose and mouth without gaping; and

  • durable to allow you to frequently wash and dry it without losing its shape.

Other options for non-medical masks include wearing a bandana or scarf, or making one out of a T-shirt or a bandana. The Public Health Agency of Canada also offers instructions on how to make a homemade face coverings.

Do Even Workplace Staff Have to Wear Masks In the Business

Yes. Staff are to wear masks when they are in those portions of a fixed commercial premises that are openly accessible to members of the public and that are used for the purposes of offering goods or services for sale to members of the public.

They are not required in lunch rooms, storage areas, prep areas etc. The areas of a commercial establishment that are subject to the non-medical mask and face covering requirements of these instructions are:

- any areas in which customers interact with one another or with staff members; 
- any areas that are open or accessible to members of the public; and 
- except where: the area is outside, whether or not the area is covered (e.g. a restaurant patio). 

What Should All CKL Commercial Businesses Now Do?

To comply with this new law, and with employer obligations under Ontario’s Occupational Health and Safety Act, employers should review these requirements and any other provincial or municipal directives to ensure they are following the latest safety requirements.

Businesses in the CKL should now:

  • create and post a written mask policy for the establishment;

  • communicate this new policy to staff and customers - post is prominently in your business/workplace;

  • train your staff on the policy, including when staff and customers must wear a mask or face covering, what to do if a customer refuses to wear one, and who is exempt from wearing one; 

  • verbally remind all attendees/customers who enter without a mask that they are legally required by order of the local Health Unit - avoid confrontation with customers by contacting the Health Unit for assistance; and 

  • post signs at all entrances reminding everyone to wear a mask.

The Health Unit will consider the above steps, if followed, as discharging your "good faith" and "best efforts" responsibility for his new legal obligation. If any conflict arises, attempt to distill and avoid, including by contacting the Health Unit for guidance and direction.  

Face masks and coverings do not replace the need to keep a distance of two metres or six feet from others, wash hands often, and stay home when sick.

Employees should continue to work from home if possible.

For more information about the instructions requiring non-medical mask use or face coverings, visit the Health Unit’s website at www.hkpr.on.ca or call toll-free at 1-866-888-4577, ext. 5020.

What About Professional Offices or 'By Appointment Only' Businesses

Establishments that do not fall under the definition of a commercial establishment are: schools, child care centres, business offices that are not open to members of the public, professional offices where clients receive purchased services (e.g., lawyers’ offices) that are not open to members of the public, hospitals, independent health facilities and offices of regulated health professionals.

Do I Have to Supply Customers With Masks

This is not legally required, but not having a mask is not a valid 'exemption' so it may be to the benefit of the business to have masks for these circumstances.

So, have masks available to those who do not have one.
 

Can I Use Only a Facial Shield Instead

Face shields are not equivalent for source protection to non-medical masks. Face shields should only be considered as an alternative for those staff that are not able to tolerate masks due to age or a condition of some kind.

Is It Okay To Simply Hide Behind a Hygiene Screen

No. Masks must be worn by staff when in areas used by the public.

Formal Directions to “Commercial Establishments”

The Health Unit’s letter to all “commercial establishments” is here: https://www.hkpr.on.ca/wp-content/uploads/2020/07/Commercial-Establishments-EMCPA-July-2020.pdf

MOH’s Fact Sheet

The Health Unit’s “Fact Sheet” for this new directive is here: https://www.hkpr.on.ca/wp-content/uploads/2020/07/HKPR-COVID-factsheet-Mandatory-Non-Medical-Masks.pdf

Video – How To Use a Non-Medical Mask

A video about how to use a non-medical mask properly is here: https://www.youtube.com/watch?v=lc1mqyPCOpo&feature=youtu.be

Posters For Your Business

Posters to prominently post in your workplace/business are available here: https://www.hkpr.on.ca/wp-content/uploads/2020/07/HKPR-COVID-poster-Protect-Yourself-Wear-A-Mask.pdf

Need a Written Mask Policy

Give us a call - we'll set you up in no time.  

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RECOVERY IN THE CKL - JASON'S AND CALVIN'S "HIRING CHECKLIST" CHEAT SHEET!

HIRING CHECKLIST

1.     SIGNED EMPLOYMENT AGREEMENT/OFFER:

Before the employee starts any work:

  • ensure that you have the employee’s properly signed employment agreement or accepted offer of employment;

  • ensure that the employment agreement/offer addresses everything necessary, including for termination (with and without cause), leaves of absence, police record checks (if desired or mandatory), health and safety training, accessibility, job description (defining the position adequately), confidentiality, right to lay-off, rules for suspension, etc.;

  • consider whether the employment agreement/offer should contain any non-competition and/or non-solicitation provisions to protect your business and assets in future; and     

  • provide a copy of the agreement/offer to the employee before the employee starts in the position.

2.     POLICE RECORD CHECKS AND PROFESSIONAL REFERENCES:

  • obtain any required police record check (judicial record check, vulnerable sector check) and professional reference(s) prior to the employee starting any work for the position; and 

  • ensure that the employment agreement/offer is conditional on those requirements and being satisfied with the results. 

3.     HIRING AND RECRUITMENT:

  • ensure avoidance of discriminatory practices prohibited by the Ontario Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”); and

  • review and adhere to your “The Hiring Process – Do’s and Don’ts”.

4.     BE CLEAR ABOUT WORK, ESPECIALLY REMOTE WORK:

  • before the employee is permitted to work remotely, such as from home, ensure you have a workplace policy specifying eligibility, rules, requirements to do so (responsiveness, productivity, conduct, etc.), digital security and access, confidentiality and approval for overtime work, among other things; and

  • consider your own confidentiality requirements and ensure the employee is required to meet those obligations, including via online communications, using digital devices, etc.

5.     BE SENSITIVE TO POTENTIAL DISABILITY ISSUES:

  • offer accessibility and accommodation during the recruitment and hiring process, if necessary;

  • request the employee to identify any potential accessibility or accommodation needs, if any, being very mindful of avoiding questions, or requesting information, prohibited by the Code; and

  • review and adhere to your “The Hiring Process – Do’s and Don’ts”.

6.     PROTECT CONFIDENTIALITY:

  • ensure that you have the employee’s properly signed confidentiality acknowledgement, depending on the nature of your business and the importance of confidentiality to you and your clients, customers, employees, service providers, etc.   

7.     PROTECT YOUR PROPRIETARY INTERESTS:

  • if you have proprietary intellectual property and/or information technology assets, ensure you have a proper acknowledgement signed by the employee to protect both your IP and IT assets in future, including digital assets.  

8.     DISCLOSURE OF PERSONAL INFORMATION:

  • ensure that the employee has properly signed a consent to the disclosure of the employee’s personal information (i.e. photographs, videos, etc.) for the purpose of marketing and/or promotion of your business, if desired; this also protects your third-party marketing and/or promotion partners and agents.   

9.     SET EXPECTATIONS:

  • provide the employee access to review your workplace policies before the employee signs the employment agreement/offer;

  • offer to review those with the employee and answer any questions; and

  • ensure that the employee signs an acknowledgement verifying the employee’s review of your workplace policies (and any other key expectation(s) for the employee in future) and agreement to adhere to those in future.

10.   COMPLY WITH STATUTORY AND CRA RULES:

  • add the new employee to your CRA account for payroll source deductions, etc.;

  • ensure that the employee completes a TD-1 and a TD1ON Form;

  • complete the year-end T4A and other CRA requirements for the employee;

  • add the employee to your Workplace Safety and Insurance Board account, if applicable;

  • inform the employee of where a copy of (Ontario’s) Occupational Health and Safety Act, R.S.O. 1993, c. O.1, as amended (the “OHSA”), is posted prominently in your workplace;

  • inform the employee of where copies of both your heath and safety policy and your violence, harassment and sexual harassment prevention policy are posted prominently in your workplace, as required by the OHSA;

  • give the employee a copy of the “Health & Safety at Work: Prevention Starts Here” poster, required by the OHSA, which must also be displayed prominently in your workplace at all times;

  • inform the employee of the names and locations of your workplace Joint Health and Safety Committee members, if applicable;

  • give the employee a copy of the “Employment Standards in Ontario” poster, published by the Ontario Ministry of Labour; and

  • arrange for the employee, including if he or she is a supervisor, to complete the mandatory health and safety awareness training required by the OHSA.

This is a summary only, intended to be for your general information only.

We strongly recommend that you contact us, or other qualified employment law counsel, for specific advice that may apply to, or be helpful for, any concerns you may have with hiring a new employee.

© WARDS LAWYERSPC

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SO, YOU'VE BEEN DEFAMED. HAVE YOU? DEFAMATION - THE BASICS.

Defamation has two forms: libel (written words) and slander (spoken words).

For a defamation case, a person must prove:

1.            the words at issue were defamatory (meaning they would negatively impact the person’s reputation in the eyes of a reasonable person);

2.            the words, in fact, referred to the person complaining about those words; and

3.            the words were published (meaning they were written or said to a person other than the person who is complaining about the words).

Generally, the legal way of understanding 1 above is:

“Expressions which tend to lower the reputation of a person in the estimation of right thinking members of society generally or which expose a person to hatred, contempt or ridicule are defamatory.”

If these three elements are proved, damages are generally presumed and the onus shifts to other person to prove a defence to avoid liability.

There are many defences raised by defendants in defamation cases. For example, if the defendant can prove the words were “true”, it usually means liability is avoided. There are also special occasions that offer protection to those who defame others, such as in Court documents (allegations, etc.). There are a number of other defences available, too, some of which are quite legally complicated.

Ontario also has the Libel and Slander Act, which imposes statutory law to defamation. For example, special notice requirements apply if the defamation is published in the media, for example. In addition, defamation in the context of a person’s profession can also be actionable even if specific (monetary) damages cannot be established.

Sometimes, defamation creates a balance between protection reputation and free speech. This often arises in the context of defamatory statements made in the media or sometimes online.

Generally, damages awards in Ontario for defamation cases are somewhat modest, particularly in cases not involving mass, publication through media.

More cases are emerging over defamatory statements made online, particularly through social media and discussion blogs and forums. Those cases tend to be challenging to deal with, including whether the host of the blog or discussion forum should also face liability.

In Ontario, a person may also defend a defamatory claim by proving successfully that the statement was made in the public interest and, if so, liability may be avoided.  

Ontario also has adopted legislation about apologizing to others. This legislation does not protect a person from liability, but is intended to try to prevent lawsuits from happening and encourage disputing parties to resolve before a lawsuit. If offers some protection to those who do apologize, too.    

Defamation is a fairly specialized legal field. If you feel that you have been defamed, or you are accused of doing so, you should speak to a lawyer qualified and experienced with this area of law. This is a very brief outline about this area of law only, which is quite extensive and often complicated. 

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OUR NEW ECONOMIC RECOVERY PLAN - ONT. GOV. DUMPS THE "HEARING OF NECESSITY" RED TAPE - GET READY TO ACCELERATE NEW INFRASTRUCTURE SPENDING IN THE CKL

The Government of Ontario has developed a made-in-Ontario plan for growth, renewal and economic recovery.

This plan includes measures that would make it easier and faster to build provincial highways, major transit infrastructure projects and quality, affordable housing, while ensuring there are meaningful opportunities for community consultation and input.

As part of the government's plan, the province is proposing to accelerate key provincial highway construction and priority transit projects by establishing an exemption from the Hearing of Necessity process.

Provincial Hearings of Necessity occur approximately 5-10 times per year on average for provincial highway projects.

Each hearing adds months of red tape and construction delays for critical provincial infrastructure, costing up to five months for transit projects and up to 12 months for provincial highway projects.

As part of this plan, the government would also enter into new commercial agreements with partners to build transit-oriented communities. This would allow for the development of more housing around transit in an integrated manner and put more job opportunities within the reach of more people.

The measures would also save taxpayers money by having the development industry make direct, significant contributions to the cost of building transit for the benefit of communities, all transit riders, and Ontario taxpayers.

These measures would allow the province to more quickly undertake important technical investigations and prepare construction sites, while ensuring meaningful consultation with landowners.

DID YOU ALSO KNOW

  • The province is investing $2.6 billion to expand and repair Ontario’s highways and bridges.

  • Ontario will continue to collaborate with the City of Toronto and York Region under the historic joint transit partnership agreements and Transit-Oriented Communities Memorandums of Understanding.

Additional Resources

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JASON'S TOP 10 FAST AND FURIOUS FACTS ABOUT THE CITY OF KAWARTHA LAKES

  1. “Kawartha” is an anglicization of the word Ka-wa-tha (from Ka-wa-tae-gum-maug or Gaa-waategamaag, a word coined in 1895 by aboriginal Martha Whetung of the Curve Lake First Nations - the word meant "land of reflections" in the Anishinaabe language, according to Whetung. The word was later changed by tourism promoters to Kawartha, meaning "bright waters and happy lands"

  2. the population is approximately 76,000

  3. there are approximately 40,000 private dwellings

  4. it is about 3,000 square kilometres in size

  5. currently the demographics are believed to be:

  • English: 45.2%

  • Canadian: 35.0%

  • Irish: 27.6%

  • Scottish: 20.3%

  • French: 10.4%

  • German: 9.4%

  • Dutch: 6.3%

  • First Nations: 2.9%

  • Welsh: 2.6%

  • Polish: 2.2%

  • Italian: 2.2%

  • Ukrainian: 2.2%

  • British Isles (other): 2.0%

  • Hungarian: 1.0%

  • White 95.5%

  • Native: 2.9%

  • Visible minority: 1.6%

  • 6.downtown Lindsay is known for having one of the widest downtown streets in Ontario, designed to be wide enough to accommodate the turning radius of a four-horse hitch

  • 7. the last Canadian National Railway (CN) train to run through City of Kawartha Lakes was on the Lindsay - Uxbridge line which ceased operation in 1991.

  • 8. the last passenger train to run through the City of Kawartha Lakes was No. 189 with Budd Car VIA 6104 from Havelock to Toronto Union Station over Canadian Pacific Railway (CP) lines on January 14, 1990

  • 9. it hosts the largest, outdoor kids’ road hockey tournament in Canada

  • 10.notable (famous) residents include:

  • Ruth Abernethy, sculptor, was born here in 1960

  • Carl CoulterCFL player, won the Grey Cup with the Hamilton Tiger-Cats in 1999.

  • Ron Ellis played for the Toronto Maple Leafs in the 1960s and 1970s, and was a member of Team Canada 1972 in the Summit Series.

  • Evangeline Lydia Emsley (b. 1885), nurse in World War I

  • Leslie M. Frost (September 20, 1895 – May 4, 1973), Premier of Ontario from 1949 to 1961. First elected in 1937 to the Ontario legislature representing Victoria-Haliburton, he was known as "The Laird of Lindsay." He combined small town values with progressive policies to lead the province through the economic boom of the 1950s.

  • Pearl Hart, outlaw

  • Simon Ward and Darryl James of The Strumbellas band, an internally-recognized band originating in Lindsay, ON

  • Sir Sam Hughes, Minister of Militia for Canada during World War I was born and raised in Lindsay.

  • Tyler Kyte, actor and musician, known for appearances in Instant Star and Popular Mechanics for Kids.

  • Joey Lawrence, commercial photographer behind the Twilight movie posters.

  • Fergus Patrick McEvay, former Catholic archbishop of Toronto.

  • Megan Park, actress best known for her role as Grace on Secret Life of the American Teenager

  • Joe Primeau played for the Toronto Maple Leafs in the 1930s.

  • Matthew Rose, swimmer, competed at the 2004 Olympic Games in Athens

  • Ernest Thompson Seton (1860–1946), artist, naturalist and writer of realistic wild animal stories. The Thompson family arrived in Lindsay in 1866 from South Shields, England. They resided in the home they built on Stony Creek until 1870, when Seton's father, Joseph Thompson, secured employment in Toronto as an accountant.

  • Jack Tunney, best known as an on-air authority figure for World Wrestling Entertainment in the 1990s made his second home in Lindsay, and died there in 2004.

  • Three out of the four members of The Kents, an alternative rock band, are from Lindsay

  • Nancy Sweetnam, Olympic medalist 

  • Other NHLers from the town include: Jeff BeukeboomDon MaloneyDave MaloneyJamie AllisonJoe JunkinDave Roche, and Tom Thornbury.

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JASON'S TOP 10 CRAZIEST LAWS IN THE CITY OF KAWARTHA LAKES - THAT YOU DIDN'T EVEN KNOW YOU WERE BREAKING!

1.You could go to jail if you in any way melt, deface, alter or change any coin [Canadian Currency Act].   

2.Practicing witchcraft, sorcery and the dark arts is strictly illegal [Criminal Code, s. 365].

3.You cannot challenge anyone to a duel (swords or pistols) – period [Criminal Code, s. 71].

4.Possessing any comic book depicting any criminal act is highly illegal [Criminal Code, s. 164.1].

5.You cannot use too many coins to pay for your dinner or other purchase; specifically, a maximum of $25 (if using loonies) or a maximum of $5, if using nickels, etc. [Canadian Currency Act, 1985].

6.You could be jailed if you trick or mislead anyone to thinking something is Canadian maple syrup, when it is not [Maple Product Regulations, s. 3.1].

7.In fact, you can turn left at a red light if you're on a one-way street and you're about to turn onto another one-way street [Highway Traffic Act].

8.You can apologize to someone for something you said, without admitting any liability whatsoever for your statement or initial defamation of that person [Apology Act].

9. You cannot "enter or leave [an] aircraft during flight unless. . . (a) the person leaves for the purpose of making a parachute descent”. If the passenger is in possession of a parachute, however, making a mid-air jump from the plane can only be done with the permission of the pilot. So, if you jump out of a plane without a parachute and survive, you could go straight to jail, do not collect $200.

10.It’s totally illegal to scare or alarm the Queen [Criminal Code].

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DO NON-BIOLOGICAL/NON-ADOPTED CHILDREN GET CHILD SUPPORT FROM A NON-PARENT? YES, IF THEY ACTED LIKE A PARENT. WHAT YOU NEED TO KNOW.......

Generally, for a non-biological child, the Court will examine whether a person, for the purposes of having to pay support to that child, treated the person as his “child”, had a “settled intention” to do so and, in fact, had provided that person with financial support during the relationship.

Even after death, for example, under Ontario’s Succession Law Reform Act, the definition of “child” includes someone who the deceased individual had a “settled intention” to treat as their child.

Generally, the Court will consider, possibly among other things:

  • did the “parents” pool their income into a joint account?

  • did the “parents” pay the expenses for all children out of this same account?

  • did the child in question refer to the man as “daddy” or the woman as “mommy”?

  • did the “parents” refer to themselves as “mommy” and “daddy”?

  • did the “parents” share the task of disciplining the child?

  • did the child participate in the extended family in the same was as a biological child?

  • was there a change in surname?

  • did the “parent” express to the child, the family and the world, either implicitly or explicitly, that he or she is responsible as a parent to the child?

In a recent case, in which an alleged parent had died and a former girlfriend applied for “dependent’s relief” on behalf of the non-biological child, the Court remarked:

In my view, [the Deceased’s] support of [the Applicant] in these ways rises above affection and generosity. Despite the atypical family relationships between [the Deceased, the Applicant’s mother, the Deceased’s biological child, and the Applicant], [the Deceased’s] support of [the Applicant] demonstrates his settled intention to treat her as a member of his unconventional family. I find that [the Applicant] is therefore a dependant for the purposes of the SLRA.”

While this was a case involving a death of a “parent” who had demonstrated a “settled intention”, the same, or a similar result, would likely have been achieved if the case involving the payment of Ontario child support, rather than “dependent’s relief”. 

The Case:

Deleon v. Estate of Raymon DeRanney, 2020 ONSC 19 (CanLII)

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JASON'S AND CALVIN'S DO'S AND DONT'S FOR JOB INTERVIEWS - ASK THIS, BUT NOT THIS. BEFORE, DURING AND AFTER THE INTERVIEW. TIPS AND TRAPS.

THE HIRING PROCESS – DO’S AND DON’TS

BEFORE THE INTERVIEW:

DO:

Create a uniform hiring process for all applicants:

Draft interview questions in advance based on the essential duties and requirements of the position. Develop the “answers” and assess applicants based on these objective criteria. Ask all applicants the same questions. These measures guard against informal, subjective assessments entering human-resource decision-making.

Use an application form to screen applicants:

Application forms are simple tools to supplement an application with relevant information.  These forms should include a basic job description and a Statement of Qualification for the applicant to affirm their qualifications for that job; this will assist in screening applicants who overstate their qualifications.  

Prepare a panel of interviewers, if possible, to assess applicants according to the hiring process:

A panel assessing an applicant’s answers allows for a more diverse and objective perspective. A panel will also provide multiple witnesses to the interview, one of whom should record thorough notes.

Offer to accommodate an applicant, if he or she requires accommodation, before the interview:

Applicants are generally responsible to inform potential employers of their needs and to provide adequate detail for the employer to respond accordingly. Once aware of the need to accommodate, employers should co-operate with the applicant in creating an interview or hiring mechanism that addresses the duty to accommodate arising under both human rights legislation and Ontario’s Accessibility for Ontarians with Disability Act, 2005, S.O. 2005, c. 11, as amended.

Exercise caution when actively recruiting an applicant from a long-term employment position:

Employers should be cautious when engaging in active recruitment of applicants who are employed in a stable, long-term position. Applicants who are induced to terminate their stable, long-term employment for a new opportunity may have a lengthened term of service with their new employer.

DONT:

Make hiring decisions using informal, ad hoc. processes or decision-making:

While an informal conversation with an applicant may be appealing, an uncontrolled, subjective process can lead to subconscious bias and, in some cases, discrimination allegations. Having a plan and a written procedure before an interview will give structure and objectivity to the interview process.

Be unprepared:

An interviewer who is unprepared for an interviewee will tend to focus on a person’s superficial characteristics rather than the interviewee’s merit.

Use social media screening without the consent of the applicant and without considering whether you need such personal information:

An employer must obtain an applicant’s consent to collect their personal information. Personal information on social media is no different. An employer should not attempt to skirt privacy rules by using their personal account to screen an applicant or rely on a third party to conduct the screening.

Rely on the information on social media to the exclusion of traditional sources of personal information:

In general, employers should be wary that the information obtained on social media may be unreliable or inaccurate, and is usually unnecessary.

Ask for reference contacts without intention to contact them:

Asking for references is an indication that those references will be contacted. An employer who makes a hiring decision without making use of information that would have been available through a reference check may become open to legal liability for information they ought to have known.

DURING THE INTERVIEW:

DO:

Ask an applicant about his or her qualifications, relevant experience, training and previous positions:

Human rights and privacy laws do not limit the right of employers to obtain legitimate information about the people they may hire. All interview questions and topics must be designed to elicit job-related information concerning the applicant’s relevant knowledge, skills and ability to perform the key duties of the position.

Describe the job requirements, such as overtime, weekend work or travel:

Framing questions in terms of job requirements is an effective way of removing discriminatory elements in questions.

Ask the applicant to affirm their qualifications:

An applicant should be asked to review the Statement of Qualification included in the application form and to sign that statement if they have not done so already. 

Take notes, take notes, take notes:    

Taking and retaining notes and other written records of the interview will provide contemporaneous evidence in any potential discrimination claim before a human rights tribunal or the Courts. While taking notes cannot immunize employers to claims, once started, such evidence can be a powerful tool to defend against a claim

DONT:

Ask questions that provide information regarding a prohibited ground of discrimination:

The following is a non-exhaustive list of general topics to avoid in an interview:

  • Race, colour, ancestry or place of origin:

If you need information about an applicant’s immigration status, simply ask whether the applicant is legally entitled to work in Canada. Avoid asking other questions related to a person’s educational institution, last name or any clubs or affiliations that are designed to indicate their race, ancestry or place of origin.

  • Citizenship:

Employers may not ask about a person’s citizenship unless Canadian citizenship or permanent residency is a legitimate job requirement.  In all other cases, employers should restrict their inquiry to whether the applicant is legally entitled to work in Canada.

  • Religious beliefs or customs:

Employers may not ask about a person’s religious beliefs or customs. If you need information about when an applicant can work, ask whether he or she can work overtime or weekends if that is a legitimate job requirement.

  • Gender identity and sexual orientation:

There is rarely (if ever) a reason you need to know an applicant’s sexual orientation. Questions about a person’s personal relationships should be completely avoided in almost all cases. Gender identity-related questions should never be asked.

  • Marital or family status:

Instead of asking about a person’s family or marital status, simply ask if the applicant can work the hours required of the position or if they are able to travel or relocate.

  • Physical or mental disability:

Avoid asking about an applicant’s general state of physical or mental health or any history of sick leaves, absences and workers’ compensation claims. Employers may, however, ask the applicant whether they are able to perform the essential duties of the position and describe the physical and mental requirements of the position.

  • Gender:

Avoid questions about gender, including questions about pregnancy, breastfeeding, childcare arrangements and plans to have children.

  • Age:

While employers may ask an applicant for their birthdate upon hiring, the age of the applicant is rarely relevant unless there is a question as to whether the applicant has reached the legal working age, which varies from province to province.

  • Criminal or summary convictions:

In general, employers may ask the applicant about their criminal record where there is a legitimate reason to know, such as when the job involves a position of trust or working with vulnerable persons. If this is need-to-know information, require a police and judicial matters check as a condition to hiring the interviewee. 

  • Former names:

Avoid asking a person about their former names unless needed to verify previous employment and education records. Avoid asking about names to determine someone’s origin, maiden name or whether the person is related to another person.

  • Language:

What languages an applicant speaks may cross the line if they are really disguising questions about race, place of origin or ancestry. The exception is, obviously, where the ability to communicate in certain languages is specifically required for the position.

  • Source of income:

It is recommended that employers avoid asking about an applicant’s source of income, as this is irrelevant, and some sources have a social stigma attached to them, such as social assistance, disability pension and child maintenance.

  • Genetic characteristics:

Employers should avoid asking an applicant about the results of a genetic test (23andme, Ancestry, etc.) and should avoid making decisions based on that applicant’s genetic traits, including traits that may cause or increase the risk to develop a disorder or disease.  

Ask questions designed to elicit irrelevant information or information unrelated to the legitimate job requirements:

Privacy laws require that employers only collect personal information that a reasonable person would consider appropriate in the circumstances. Again, the employer must only do so with the consent of the applicant. The best practice is to only collect information that is reasonably necessary to make a hiring decision.

AFTER THE INTERVIEW:

DO:

Keep the interview notes and documentation for as long as possible:

Employers should keep all materials from the hiring process for as long as necessary to comply with applicable legislation and protect themselves from any possible litigation. At a minimum, it should be two years from the date of the initial interview. 

Ask the selected individual(s) for further information:

Once hired, it is permissible to ask a person for further documentation necessary to maintain and establish the employment relationship if there is a legitimate need for that information. When an offer of employment is accepted (or conditional on certain checks being completed with the consent of the individual), it will generally be necessary to collect an employee’s birth date, social insurance number, personal contact information and all other personal information needed to establish the relationship, including information needed to enroll the employee in benefits plans and payroll.

_________________________________

This is a summary only, intended to be for your general information only. We recommend that you contact us, or other qualified employment law counsel, for specific advice that may apply to, or be helpful for, any specific interview you conduct, or employment offer you may wish to make, in future, including with respect to your hiring and recruiting practices generally. 

© WARDS LAWYERSPC

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NEW FREE ONLINE SAFETY TRAINING AVAILABLE FOR RE-OPENING - ENROLL ONLINE - ALL EMPLOYEES AND JOB SEEKERS. WHAT YOU NEED TO KNOW TODAY.......

FREE ONLINE SAFETY JOB TRAINING AVAILABLE 

As the CKL safely and gradually reopens, the Ontario government has announced an investment of $3 million to provide free online health and safety training for the first time.

These virtual courses will make it easier for job seekers and workers to get essential qualifications, while practising physical distancing and preventing the spread of COVID-19.

Up to 100,000 job seekers can now take free online workplace health and safety training through Employment Ontario.

There are 10 courses on offer, which include topics such as infection control, conducting health and safety incident investigations, ladder safety, slips, trips and falls prevention, and preventing workplace violence and harassment.

Job seekers should contact an Employment Ontario service provider in their area to enroll.

In addition, worker and employer members of Joint Health and Safety Committees can now use video conferencing to take training in real-time with qualified instructors from training providers approved by Ontario's Chief Prevention Officer.

The training includes sessions on how to establish a Health and Safety Committee, resolving health and safety issues, workplace inspections, and accident investigations.

Ontario's Chief Prevention Officer is extending the time for completion of refresher training for more than 8,000 certified committee members whose certification would have expired between February 28 and August 31, 2020. They have until November 30, 2020 to renew their training, which will be easier thanks to new online options.

DID YOU ALSO KNOW

  • Employment Ontario serves more than one million clients per year and has more than 700 service locations across Ontario.

  • A Joint Health and Safety Committee’s primary role is to identify workplace health and safety issues and bring them to the attention of the employers.

  • Over the last three years, an average of 37,000 people per year took Joint Health and Safety Committee certification training.

Additional Resources

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TODAY FEDS EXTENDED THE 14-DAY RULE FOR THOSE RETURNING TO CANADA (UNTIL AUG. 31)

Today the federal government extended the mandatory quarantine order until August 31 for the majority of people entering Canada. 

The federal Quarantine Act order was originally set to expire on Tuesday at midnight.

Travellers entering Canada will have to complete 14 days of self-isolation, whether they have COVID-19 symptoms or not.

The updated order also requires travellers to wear non-medical masks as they enter Canada or are making their way to the location where they will be isolating, by transit. The non-medical mask is not required in private vehicles.

Penalties for breaking the order include a fine of as much as $750,000 or six months in prison. If the person who disobeyed the order caused bodily harm or death by wilfully breaking the order—the fine could reach $1 million.

Those who are exempt from the order include people crossing the border often to ensure the flow of goods and services as well as people entering in order to provide essential services.

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NEW EMERGENCY ORDER - CKL RESTAURANTS CAN HAVE COVERED OUTDOOR SERVICE, IF MUNICIPALITY AGREES.

Ontario has issued a new emergency order and amending another under s.7.0.2 (4) of the Emergency Management and Civil Protection Act, which will allow municipalities to quickly pass temporary bylaws for the creation and extension of patios and allow covered outdoor dining areas to serve customers.

Under the Planning Act, the process to pass temporary use bylaws to create or extend a patio could take several weeks or more.

As restaurants are currently only permitted to host dine-in guests on outdoor patios under Stage 2.  

Municipalities would still be responsible for compliance activities and ensuring proper health and safety practices, like proper physical distancing.

The government also amended an emergency order to clarify that outdoor dining areas can open if they have a roof, canopy, tent, awning or other covering.

At least two full sides of the outdoor dining area must be open to the outdoors and must not be substantially blocked in any way. If the outdoor dining area has a retractable roof, the roof must be fully open and at least one full side must be open to the outdoors and must not be substantially blocked in any way.

On June 24, Ontario announced the extension of the Declaration of Emergency to July 15, allowing the province to continue to make or amend emergency orders under the Emergency Management and Civil Protection Act. The government continues to review all these emergency orders to determine when and if it is safe to amend or lift them as restrictions are eased and more places in the province reopen in a safe and measured way.

A full list of emergency orders can be found on the e-Laws website under the Emergency Management and Civil Protection Act and at Ontario.ca/alert.

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WHAT IS COLLABORATIVE FAMILY LAW? AND WHY AM I SUPPOSED TO DO THAT INSTEAD OF FAMILY COURT?

Collaborative family law has grown in popularity over the last 25 years and has been embraced by family law practitioners to varying degrees. The collaborative family law movement began in the Western American states and was later adopted in British Columbia as one of the first provinces in Canada to embrace a shift in family law towards alternative forms of dispute resolution. Since that time, many lawyers across the country have embraced a transition to the collaborative process, perhaps in light of the fact that most family law cases settle before they reach the adjudication phase of litigation.

Collaborative family law took hold in Lindsay in 2012 when a group of local family law lawyers completed the necessary training and established the Kawartha Collaborative Practice group. Many family law lawyers are shifting towards seeking a method of resolving family matters in a more supportive way. This phenomenon, together with the growing barriers to accessing the judicial system, has led to a drastic increase in families choosing to embrace the collaborative process. The current legal system has been criticized for being ineffective and inflexible for adjudicating the many issues associated with family law matters. However, the recent Bill C-78, which introduces amendments to the Divorce Act, shows direct movement towards recognizing the collaborative process as a viable alternative dispute resolution process.

Indeed, settlement may be the most attractive option for litigants, as adjudication in the family court removes a great deal of control with respect to a family’s financial and structural future. Parties engaged in family law issues are typically dealing with a host of other emotional and financial uncertainties, which the traditional legal model is not able to address holistically. Additionally, many individuals involved in the family law system become frustrated with the expense, investment of time, and the lack of control they experience while litigating such personal matters.

In contrast, the collaborative process is focused on individual and family goals and interests and offers a method of achieving flexible yet legally binding solutions without pursuing costly and unpredictable litigation. Process goals include respectful communications, forthright exchange of documentation, confidentiality, and involvement of various collaborative professionals who strive for problem solving. The collaborative process is truly all encompassing and often includes various professionals trained in the collaborative approach, such as financial advisors, mental health professionals, social workers, and negotiation coaches/facilitators.

In the collaborative process, lawyers are specially trained to remain focused on settlement. The parties sign a Participation Agreement which governs their behavior throughout the process. The parties and their lawyers arrange “team” meetings which are structured to allow individuals to actively participate in creating solutions that are realistic for their family and which emphasize their main goals and interests. The main caveat of this approach is that it is essential that the parties are committed to resolution and are able to consider or appreciate the issues (to some extent) from each other's perspectives.

A primary critique of the collaborative process is the inevitability of an impasse between the parties resulting in either coercive bargaining or a failure of the process. However, there are several options available in the collaborative process to overcome such an impasse. The addition of neutral professionals to the collaborative process may decrease the chances of the parties reaching an impasse. Parties who are able to hear one concise position regarding their family’s financial matters directly from trained professionals may be less likely to fixate on one single financial position, and more likely to agree on a financial solution. Likewise, parties who have received the benefit of a social worker’s skillset may be less likely to escalate emotionally and dig in their heels when attempting to reach a settlement. In the case of a severe impasse that cannot be overcome by the collaborative team, one or two deadlocked issues may be referred to an outside mediator or arbitrator for recommendations or a final decision.

The rebuilding of a basic foundation of trust between parties is a central component to the collaborative process, even if this trust is limited in scope. Parties must learn how to work together, even if only with respect to limited situations, such as those relating to their children’s best interests. Once this trust building process begins – even if only in certain areas – impasses on other issues may be less likely to occur. Given the unique requirements of the collaborative process and the challenges associated with unique family dynamics, it may not be right for every family. However, unlike litigation, the collaborative process is flexible and ensures that both parties are able to be involved in the process of designing creative solutions that meet the unique needs and goals of their family. A meeting with a trained collaborative family lawyer will assist in determining whether the collaborative process is right for you and your family.

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THE CKL ECONOMY IS RE-OPENING - BACK TO WORK - JASON'S AND CALVIN'S TOP 10 LEGAL TIPS FOR HIRING A NEW EMPLOYEE

As our local economy in the CKL gradually re-opens (hopefully), here are Jason's and Calvin's top 10 tips for hiring a new employee: 

[1]      SIGNED EMPLOYMENT AGREEMENT/OFFER:

Before the employee starts any work:

  • ensure you have the employee’s properly signed employment agreement or accepted offer of employment;

  • ensure the employment agreement/offer addresses everything necessary, including for termination (with and without cause), leaves of absence, police record check (if desired or mandatory), health and safety training, accessibility, job description (defining the position adequately), confidentiality, right to lay-off, rules for suspension, etc.;

  • consider if the employment agreement/offer should contain any non-competition and/or non-solicitation provisions to protect your business and assets in future; and     

  • provide a copy to the employee, before the employee starts in the position.

[2]    POLICE RECORD CHECK AND PROFESSIONAL REFERENCES:

  • obtain any required police record check (judicial record check, vulnerable sector check) and professional reference(s) prior to the employee starting any work for the position; and  

  • ensure the employment agreement/offer is conditional on those requirements and being satisfied with the results.  

[3]    HIRING AND RECRUITMENT:

  • ensure avoidance of discriminatory practices prohibited by the Ontario Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). 

[4]    BE CLEAR ABOUT WORK, ESPECIALLY REMOTELY (FROM HOME):

  • before the employee is permitted to work remotely, such as from home, ensure you have a workplace policy specifying eligibility, rules, requirements to do so (responsiveness, productivity, conduct, etc.), digital security and access, confidentiality and approval for overtime work, among other things; and

  • consider your own confidentiality requirements and ensure the employee is required to meet those obligations, including via online communications, using digital devices, etc.

[5]    BE SENSITIVE TO POTENTIAL DISABILITY ISSUES:

  • offer accessibility and accommodation during the recruitment and hiring process, if necessary; and 

  • request the employee to identify any potential accessibility or accommodation needs, if any, being very mindful of avoiding questions, or requesting information, prohibited by the Code. 

[6]    PROTECT CONFIDENTIALITY:

  • ensure you have the employee’s properly signed confidentiality acknowledgement, depending on the nature of your business and the importance of confidentiality to you and your clients, customers, employees, service providers, etc.   

[7]    PROTECT YOUR PROPRIETARY INTERESTS:

  • if you have proprietary intellectual property and/or information technology assets, ensure you have a proper acknowledgement signed by the employee to protect both your IT and IP assets in future, including digital assets.  

[8]    DISCLOSURE OF PERSONAL INFORMATION:

  • ensure the employee has properly signed a consent to the disclosure of the employee’s personal information (i.e., photographs, videos, etc.) for the purpose of marketing and/or promotion of your business, if desired, which also protects your third party marketing/promotion partners and agents.   

[9]    SET EXPECTATIONS:

  • provide the employee access to review your workplace policies before the employee signs the employment agreement/offer;

  • offer to review those with the employee and answer any questions; and

  • ensure the employee signs an acknowledgement verifying the employee’s review of your workplace policies (and any other key expectation for the employee in future) and agreement to adhere to those in future.

[10]  COMPLY WITH STATUTORY AND CRA RULES:

  • add the new employee to your CRA account for payroll source deductions, etc.

  • ensure the employee completes a TD-1 and a TD1ON Form;

  • complete the year-end T4A and other CRA requirements for the employee;

  • add the employee to your Workplace Safety and Insurance Board account, if applicable;

  • inform the employee where a copy of (Ontario’s) Occupational Health and Safety Act, R.S.O. 1993, c. O.1, as amended (the “OHSA”), is posted prominently in your workplace;

  • inform the employee where copies of both your heath and safety policy and your violence, harassment and sexual harassment prevention policy are posted prominently in your workplace, as required by the OHSA;  

  • give the employee a copy of the “Health & Safety at Work: Prevention Starts Here” poster, required by the OHSA, which must also be displayed prominently in your workplace at all times;

  • inform the employee of the names and locations of your workplace Joint Health and Safety Committee members, if applicable;

  • give the employee a copy of the “Employment Standards in Ontario” poster, published by the Ontario Ministry of Labour; and

  • arrange for the employee, including if he or she is a supervisor, to complete the mandatory health and safety awareness training required by the OHSA.

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EMPLOYEES ARE ENTITLED TO MAKE A COMPLAINT ABOUT SAFETY (COVID-19) CONDITIONS IN THE WORKPLACE, EVEN IF UNJUSTIFIED. ANTI-REPRISAL LAWS PROTECT THEM FROM TERMINATION FOR MAKING A SAFETY-RELATED COMPLAINT.

As we gradually re-open our CKL economy, employees may complain to the Ministry of Labour of Ontario about safety conditions in the workplace, justified or not. 

If so, they are entitled to do so and cannot be terminated if they do. 

Ontario's anti-reprisal laws protect employees for making safety-related complaints in the workplace, even if they are not justified.  

The Case: Le Safecross First Aid Limited, a recent decision of the Ontario Labour Relations Board

The Issue:

The employee made a complaint to his company about safety conditions in the workplace. He complained the conditions caused him to suffer ongoing knee pain and discomfort. 

Shortly after, he was terminated by the company.

The company argued there were other reasons for his termination, but ultimately the Board concluded that those reasons were unjustified and, therefore, the true reason must have been that the employee made a complaint about the safety conditions in the workplace.

The company alleged that it has made a final, written warning to the employee about his poor performance before he made the complaint. However, the employee disputed this and, because the company did not call sufficient evidence about this, the Board concluded that the final warning actually meant that the company, shortly before the termination, must have believed that a further warning, rather than termination, was justified. Therefore, the company, in trying to establish other reason(s) for termination other than the complaint, actually prejudiced its own case. An interesting feature about the case. 

Pursuant to the reprisal provisions of the Ontario Occupational Health and Safety Act, the Board ordered the reinstatement of the employee and that the company had to pay him his lost wages for the period between his termination and the reinstatement date.

The Lesson:

Employers should be careful when terminating an employee and consider all of the information on hand. If termination for cause is alleged, particularly, due consideration must be given to the justification for doing so. In this case, the employer's own strategy backfired. Employees are protected to make legitimate safety-related related complaints about the workplace.

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DOES MY BOSS NEED A GOOD REASON TO FIRE ME? WHAT ARE MY RIGHTS IF I AM FIRED?

Ultimately, employers do not need a reason to terminate an employee governed by Ontario law. They can do so “without cause” at any time, subject to the employee’s right to receive reasonable notice of termination, or pay in lieu of such notice. However, if an employer terminates an employee for cause, the employer may have no obligation to provide the employee with notice of termination or any pay in lieu thereof. Proving “cause” for termination is a high threshold in Ontario. The Courts routinely scrutinize an employer’s allegation of cause, often finding otherwise. Usually every case is unique and determined based on its own facts.  

Generally, an employee in Ontario is entitled to reasonable notice when his or her employer decides to terminate his or her employ without cause. Reasonable notice can be given either by ‘working’ notice (during which the employee remains employed) or by pay in lieu of reasonable notice. The amount of reasonable notice to which any employee may be entitled is case specific and depends on multiple factors, including age and level of responsibility.

Ontario employees terminated without cause are entitled minimum, statutory entitlements, including termination pay, under Ontario’s Employment Standards Act, 2000 (the “ESA”). Generally, most employees are entitled under the ESA to one week’s working notice or pay in lieu of working notice for each full year of service, up to a maximum of 8 weeks working notice or pay in lieu of working notice. This entitlement may vary depending on how many employees are terminated by an employer at any given time. In addition, employees employed for five years or more continuously may also be entitled to “severance pay” under the ESA – usually one week for each year of active service, up to a maximum number of weeks. 

These are the minimum, statutory rights only for Ontario employees. If there is no employment contract limiting an employee’s entitlement on termination without cause to the minimum standards under the ESA, or otherwise determining the entitlement, the terminated employee will be entitled to reasonable notice of termination of employment pursuant to the “common law”. Many lawyers refer to the ‘one month per year of service’ rule of thumb, but this is not the law. Rather, common law entitlement to reasonable notice is determined by several of factors, including: the nature of the employment, the level of responsibility, the length of the employment, the age of the employee, the availability of alternative employment and the circumstances surrounding the employer’s decision to terminate the relationship. Usually this is a very subjective assessment.

Perversely, in order to be awarded the full amount of any entitlement to pay in lieu of notice, an employee who is terminated is obliged by law to attempt to limit and/or “mitigate” his or her damages/losses from the termination by actively seeking alternative, comparable employment. Failure to do so may adversely impact the amount of common law reasonable notice to which the employee may be entitled. Only actual damages incurred are granted by the Court. Mitigated earnings during the notice period are usually deducted from the Court’s overall award. 

The situation for federally-regulated employees is different. Under the Canada Labour Code, most employees are entitled to two weeks’ notice of termination and, after twelve consecutive months of continuous employment, employees may also be entitled to severance pay equal to two days’ pay for each year of completed service, with a minimum benefit of five days wages.

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WHO'S IN YOUR CANADA DAY SOCIAL CIRCLE? DID YOU CHOOSE WISELY? YOUR CHEAT SHEET FOR CREATING YOUR SOCIAL CIRCLE - EVERYTHING YOU NEED TO KNOW. SIMPLE. FAST.

It's Canada Day 2020!

Welcome to the new normal of “social circles” in Ontario. 

Now we're told we should establish a family or social circle of no more than 10 people who can interact with one another without physical distancing. 

You can only be in 1 social circle.

Choose wisely.

You can hug non-household members, but only those in your social circle.

Everyone living in the same household is in a social circle.

People in the same social circle:

Why social circles are important

Close contact with people beyond your household is important to:

  • connect and be close with family and friends outside of your immediate household to reduce social isolation

  • support the mental health and wellbeing of Ontarians during the COVID-19 outbreak

  • allow some families to get additional support with child care, elder care and other personal needs

  • allow for more rapid contact tracing in the event of a case of COVID-19 in a social circle

We can trace and isolate COVID-19 quickly and effectively when you limit the number of people you come into close contact with.

Create a safe social circle

Follow these steps to create a safe circle.

Step 1: Start with your current circle: anyone you live with or who regularly comes into your household

Be sure to include anyone that would come into regular close contact with you and the people you live with.

This may be:

  • family members, including children

  • your roommates

  • another parent to your child(ren) that lives outside the home

  • a babysitter or caregiver

Considerations

If you add people outside of your household to your social circle, be sure to include anyone in their households as well. You may not see them often, but they would still be considered part of your current circle.

Remember that everyone in a household must be part of the same social circle.

Step 2: If under 10 people, you can add members to your social circle, including another household, family members or friends

As you add additional members, ask yourself:

  • Do they live with or come into regular close contact with anyone else? You may never see them, but they would still be considered part of your social circle.

  • What makes most sense for you or your household? That could include another household with similarly-aged children or family members that you want to spend more time with.

Considerations

If you live alone, you may want to start with family members or other close friends. People may, or may not, chose to participate in a social circle depending on their unique circumstance, and risk of developing complications from COVID-19, for example people:

  • over 70

  • with compromised immune systems

  • with underlying medical conditions

Remember that your social circle can include fewer than 10 people. It’s always best to start slow and safely add more members later.

Step 3: Get agreement from everyone that they will join the social circle

That means they agree to join only one circle, and physically distance with anyone outside the circle.

Essential workers can be part of a social circle, so long as the other members are aware of the risks and agree to them.

Step 4: Keep your social circle safe

To keep the people in your social circle safe:

  • continue to follow public health advice, including frequent hand washing and sneezing and coughing into a sleeve

  • continue to physically distance with anyone outside your circle by keeping two metres or six feet apart from them

If someone in your circle feels sick

They should immediately inform other members of the circle, self-isolate at home and not come into close contact with anyone, including other members of the circle.

They should also get tested.

Find an assessment centre to get tested for COVID-19.

Everyone else in the circle should closely monitor themselves for symptoms of COVID-19. If you believe you have been exposed to COVID-19 you should also be tested.

Step 5: Be true to your social circle

No one should be part of more than one circle.

 

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ONTARIO'S NEW "SHOP LOCALLY" CAMPAIGN ANNOUNCED TODAY. MORE SUPPORT TO CKL SMALL BUSINESSES. WHAT YOU NEED TO KNOW.

This is International Small Business. 

The Ontario government has now launched the "Shop Local! Shop Safe! Shop with Confidence!" campaign, encouraging Ontarians to support their local small businesses and to shop safely while doing so.

The province's campaign asks for mayors, local leaders and groups to support our small businesses by committing on social media to "Shop Local, Shop Safe, Shop with Confidence," while highlighting the best practices put in place by businesses to help keep shoppers safe while ensuring that the reopening of Ontario continues to be a success.

For example, the principles of the People Outside Safely Together (POST) Promise encourage small businesses to strictly follow health guidelines and reopen with appropriate measures in place, so consumers can shop safely and with confidence, including:

  • Washing and sanitizing hands

  • Maintaining physical distancing

  • Staying home if unwell

  • Practicing respiratory etiquette

  • Cleaning and disinfecting regularly

The province, in partnership with various health and safety organizations, has also released sector-specific guidelines in response to the COVID-19 outbreak. These documents help workplaces better understand their responsibilities and includes best practices they can use to help them comply with their legal obligation to protect the health and safety of workers.

DID YOU ALSO KNOW

  • Ontario is also providing significant support to small businesses, including an investment of $150 million in rural broadband which will help businesses access a greater pool of customers as well as significantly expanding the Digital Main Street platform to help small businesses create and enhance their online presence, helping them to adapt and meet the challenges of today. The province has also implemented a ban on commercial evictions to help small businesses that have been significantly impacted by restrictions due to COVID-19.

  • The Board of Directors of the POST Promise Corporation is comprised of senior level business leaders and public health experts from organizations such as: The Business Council of Canada, Retail Council of Canada, Canadian Global Cities Council, Canadian Federation of Independent Business, Building Owners and Managers Association of Canada, Restaurants Canada, McCarthy Tetrault LLP, The University of Toronto, Salt XC, and Medcan.

  • The Ontario Government reduced the small business Corporate Income Tax rate by 8.7 percent starting January 1, 2020. This will deliver up to $1,500 in annual savings to more than 275,000 businesses.

  • Ontario’s Small Business Success Strategy, launched prior to COVID-19, identified the need for small businesses across the province to build or enhance their online presence to remain competitive and expand their markets. COVID-19 has further reinforced the need for Ontario small businesses to embrace digital tools, including having online storefronts and expanding them. The Strategy also seeks to promote entrepreneurship in all of Ontario’s diverse communities.

  • To further support small businesses with physical storefronts impacted by COVID-19 restrictions, Ontario has implemented a Temporary Ban on Commercial Evictions

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NON-MEDICAL MASKS. SERIOUSLY, WHAT'S THE DEAL HERE? DO I HAVE TO BY LAW? WHEN? WHERE? YOUR QUESTIONS ANSWERED.

Do not use a medical (surgical) mask, such as an N95 – rather, make those available to frontline healthcare workers. If you have any, consider donating them to your local hospital, or other healthcare service.

At a minimum, use a non-medical (cloth) mask when you attend any public or private indoor place, like a grocery store, office, pharmacy or retail store, if there is any risk that you may be unable to maintain a minimum distance of six feet from any other person, including through no fault of your own and despite your best efforts.

Many health officials in Ontario and federally are now recommending we wear a non-medical mask anytime we visit an indoor space, like a business or public facility, even if there is no risk to maintaining physical distancing.

Wearing a non-medical mask is not legally required in Ontario, but that is likely to change very soon, at least for when we attend indoor private and public places.  

Remember that non-medical masks do you protect you from contracting the virus from another; rather, they minimize the opportunity for you to transmit it to another person, particularly if you are asymptomatic.

Do not share your non-medical mask with anyone else, like family members.

Contact your local health unit to obtain advice and instructions on how to prepare your own non-medical mask – there are video tutorials available, including on YouTube and other sources, but check with your health unit for the best source.

If you live in the CKL, here is a link about using your non-medical mask by our health unit: https://www.hkpr.on.ca/2020/04/20/covid-19-and-mask-use/

Follow the best practices published by your local health unit for using a non-medical mask, including cleaning methods. 

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RECALLED HAND SANITIZERS - TOXIC - AVOID THESE PRODUCTS.

The B.C. Centre for Disease Control is advising people not to use hand sanitizer products manufactured by Eskbiochem SA de CV in Mexico, due to the potential presence of methanol (wood alcohol), a substance that is toxic if ingested. 

Methanol, when absorbed through the skin or ingested can cause nausea, vomiting, headache, blurred vision, permanent blindness, seizures, coma, and is potentially life threatening, according to the BCCDC.

People most at risk of ingesting hand sanitizer include children, people with dementia, and people using it as a substitute for alcohol.

The warning follows a similar advisory from the U.S. Food and Drug Administration last week about the possible presence of methanol in products from the same company. 

The list of recalled products by the FDA are:

  • All-Clean Hand Sanitizer (NDC: 74589-002-01)

  • Esk Biochem Hand Sanitizer (NDC: 74589-007-01)

  • CleanCare NoGerm Advanced Hand Sanitizer 75% Alcohol (NDC: 74589-008-04)

  • Lavar 70 Gel Hand Sanitizer (NDC: 74589-006-01)

  • The Good Gel Antibacterial Gel Hand Sanitizer (NDC: 74589-010-10)

  • CleanCare NoGerm Advanced Hand Sanitizer 80% Alcohol (NDC: 74589-005-03)

  • CleanCare NoGerm Advanced Hand Sanitizer 75% Alcohol (NDC: 74589-009-01)

  • CleanCare NoGerm Advanced Hand Sanitizer 80% Alcohol (NDC: 74589-003-01)

  • Saniderm Advanced Hand Sanitizer (NDC: 74589-001-01)

Consumers are advised to dispose of the product immediately in hazardous waste containers, rather than flushing or pouring the product down the drain.

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WHAT DO I DO IF THERE IS A COVID-19 POSITIVE CASE IN MY WORKPLACE? TAKE THESE STEPS........

Several U.S. States are introducing renewed lock-down measures. Kingston recently had an 18-case issue at a nail salon, resulting in 700 contact traces. 

What do you do if you have a COVID-19 in your workplace? 

Answers: 

Isolate the worker promptly

If the worker is in the workplace, isolate the worker (hopefully at a prearranged medical room or location). If available a mask should be provided to the worker immediately for them to wear, and for any other workers providing direct care (e.g. first aid). Other workers who may have been in close contact with the ill worker should also be immediately isolated.

Get public health and healthcare advice

In most Canadian jurisdictions, local public health authorities recommend /require that they be contacted when a worker reports being ill with symptoms and indicators of COVID-19. The worker’s own physician should be contacted by the worker, or if the situation appears to be an emergency, medical assistance should be sought promptly. Public health guidance may assist the employer in determining whether it is appropriate to send other workers home, which persons to notify, or even whether to close the workplace temporarily, especially if it appears multiple workers/members of the public/visitors have been impacted.

Public health may also require or recommend contact tracing in relation to those who have had ‘close contact’ or other contact with the worker. Before any potential COVID-19 outbreak in the workplace, employers should be maintaining a log of all workers and visitors in the workplace on a given day. This will allow for immediate and accurate contact tracing.

Testing and test results

Testing for COVID-19 should be requested to confirm any suspected case of the virus. Symptoms similar to COVID-19 can sometimes be the result of a bad allergic reaction or a serious case of other flu viruses, which do not have the same potential significant consequences. Transport of the worker to obtain medical assistance or to a testing facility should be provided, if possible. It should be emphasised to the worker/testing facility, that testing results are required promptly. The earlier testing results are provided to employers, the faster they can act with certainty to help control/minimise the spread of the virus. Communications, discussed below, should refer to testing being done, timing of expected results, and communications being updated as required, if it turns out a test result for COVID-19 is negative.

Communication

Whether a case of infection is suspected, or if it has been confirmed, a general principle of good workplace and crisis management is communication. Management or human resources/ health and safety should communicate known details promptly. The purpose and scope of communication will depend on the circumstances: to alert customers or clients that a suspected case has been identified and they are being informed at the earliest possible stage; to alert affected workers or visitors/others that they may have been in the workplace or in close contact with the positive case and they may wish to be tested, for example.

Any communication need not, and should not, provide the name of the worker being tested/ who is confirmed positive, or names of others being sent home from the workplace. General principles of privacy law and specific Canadian privacy statutes prevent disclosure of specific health information. It is best to communicate privately to those individuals who may have had close contact with the affected worker, and refer generally to the areas in which the worker may have worked or have been present. Reasonable information, to prevent harm, can be disclosed. The extent of disclosure should be sufficient to inform those who may have been exposed, but also protect the privacy of the worker who has or potentially has an illness. These obligations must be carefully balanced.

Employers should be aware that it is the policy of many provincial health officers to publicly identify the location of any COVID-19 outbreak, which includes identifying the name and physical location of the workplace. Even if an employer has taken all appropriate measures to limit the transmission of COVID-19 in the workplace, they should be prepared for negative media, customer and public attention due to the stigma associated with a COVID-19 outbreak. Those employers with internal or external public relations experts should plan to utilize them.

Prompt communication to workers and affected parties, provision of honest and direct information, and communication respecting immediate measures being taken, can significantly lessen the negative publicity and damage to reputation associated with a publicized case or outbreak.

Reporting to OHS/workers compensation

Generally, across Canada, no requirement exists to report a ‘positive COVID-19 test’ to OHS or workers compensation authorities, unless it is clear that the infection arose from an exposure at the workplace.

If the infection clearly or arguably arose from an exposure at the workplace, it may be reportable. For example, if there have been other positive cases, or if a significant COVID-19 outbreak has occurred at the workplace, it will be difficult for the employer to suggest the case did not arise out of the workplace. In many jurisdictions health care or illness arising from an exposure at the workplace must be reported to Workers Compensation, and once that has been done, it must also be reported to OHS authorities, joint health and safety committee, trade union.

OHS and Workers’ Compensation reporting obligations in the applicable jurisdiction should be consulted carefully for reporting obligations. Proposed amendments to Workers’ Compensation legislation to create a presumption of workplace infection in certain industries and circumstances have been made, in BC and Ontario, but are not yet law.

In addition, in some jurisdictions, such as British Columbia, an employer is required to have developed and implemented a COVID-19 Safety Plan before reopening. In the event of a COVID-19 outbreak in the workplace, regulators will likely be asking for copies of that plan and evidence its requirements were actually implemented.

Should we shut down all or part of the workplace?

Shutting down all or part of the workplace ought to be considered carefully, depending on all of the circumstances. A decision to shut down a workplace pending confirmation of a positive test, may be premature, but in our view should be the subject of advice from local public health authorities. Upon confirmation of a positive case, an assessment of the number and frequency of contacts, and other circumstances should occur promptly. Amongst questions to be asked:

  • When did the worker last attend at the workplace? (If there has been some significant passage of time since the last shift or the worker regularly works at home, the timing of contact with workers or objects in the workplace may be determinative);

  • Does the worker work in a crew? (If so, all crew members may have been exposed and may need to be sent home to self-isolate along with the ill worker);

  • Does the worker and other workers in close proximity to him or her work in specific area separate from others in the workplace? (It may be possible to identify that group and send them home along with the ill worker to self isolate);

  • Is it possible an entire worksite, such as an office, has had exposure due to working closely together and contact with the ill worker with physical work product or objects?

  • What engineering, administrative and cleaning controls are in place at the workplace that may have reduced the risk of transmission to other workers?

  • Was the worker wearing protective equipment as recommended or required? (This bears on the assessment of potential for exposure);

  • Can any area identified as having been accessed by the worker be cleaned promptly and thoroughly to permit continued operations?

OHS regulators may attend at the workplace (physically or by phone), and make the decision on shut down for you. OHS may attend after any report of a workplace-related exposure, work refusal, or due to a worker complaint.

Communication with OHS regulators respecting the employer’s assessment of all the above factors, as well as providing relevant written pandemic processes, and protective measures being taken, is important in determining whether a stop work order may be issued, and a shutdown is necessary, pending additional measures.

While it is hoped that most employers and managers will not receive a call reporting a positive case of COVID-19, the above steps can guide a successful employer response, to minimise business, reputational and health impacts, to the extent possible.

Credit: 

By Cheryl A. Edwards, Natasha Jategaonkar, Deanah I. Shelly and Paul D. McLean. Firm: Mathews, Dinsdale & Clark LLP, published on Lexology.com on June 29, 2020 

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RETURNING TO CANADA? 14-DAY STRICT QUARANTINE WILL BE EXTENDED TOMORROW - POLICE ENFORCEMENT INCREASED. WHAT YOU NEED TO KNOW.......

The federal government will soon extend the Quarantine Act restrictions requiring out-of-Canada travellers to isolate for 14 days upon their arrival in Canada. 

This requirement would otherwise expire tomorrow.  

Up to this time, all returning Canadians were told they had to self-isolate for 14 days and that they were prohibited from stopping anywhere along the way home.

Once isolated, the traveller was required to report the development of any COVID-19 symptoms to public health officials.

A person who normally lives with an elderly person or someone with a compromised immune system, for example, would have to quarantine elsewhere.

More recently, Canadians returning home from abroad who didn't have credible plans to self-isolate were required to stay at a quarantine facility.  

In addition, travellers returning from abroad  were required to wear non-medical masks or face coverings before they could proceed to their final destinations.

If a traveller develops symptoms during a quarantine period, or is exposed to someone who does, the 14 days of isolation begins again.

If the Canada Border Services Agency suspects that a returning traveller is not going to comply with the rules, it can alert the Public Health Agency of Canada, which can then flag the RCMP's national operations centre. The RCMP has been playing a coordinating role with local police during the pandemic.

Maximum penalties for failing to comply with the Quarantine Act include a fine of up to $750,000 and/or imprisonment for six months. If someone jeopardizes another's life while wilfully or recklessly contravening the act, the penalties are even greater: $1 million or three years in prison, or both.

The Canada/U.S. border has also been closed, at least until July 21, except for essential (commercial) travel.

 

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KEY TIPS/STRATEGIES TO BUSINESS OWNERS AND MANAGERS TO RECOVER AND EMERGE MORE SUCCESSFUL THAN EVER IN PHASE 2 AND BEYOND

During our Phase 2 recovery in the CKL, business owners and managers face new and unprecedented challenges.  

Here are some tips to business operators for re-emerging to be more successful than ever: 

1. Shift focus from inputs to outcomes.

Before the pandemic, we focused on inputs: the conditions we thought would generate the desired results. Now, with most work conditions turned upside-down, leaders need to focus on outcomes.

Be clear about the outcomes, precise about the timeline, and specific about who is accountable for what – but be flexible about how things get done within that basic framework.

2. Trust your team.

We used to think people wouldn’t get their work done if they didn’t come into the office, weren’t supervised, and couldn’t meet face-to-face. We now know those assumptions aren’t necessary or helpful – people can work independently. They get work done because they choose to.

Remote leadership means respecting, and relying on, the autonomy and judgment of your team. Trust them – if you let your people decide to succeed, they will.

3. Stay motivated.

This period has been characterized by change and upheaval, it may have also seemed monotonous. To prevent fatigue inspire your team to shake things up.

Encourage experimentation with new ways of thinking and working. Adjust your daily routine. Try new set-ups that suit your lifestyle. Take a call on the treadmill or knit during a meeting. Take your laptop on the balcony or in the backyard. Even a small change can keep you and your team motivated.

4. Let your guard down.

The pandemic has brought the workplace into our homes and personal lives. While it may seem like your “worlds” are colliding, take this as an opportunity to learn about your colleagues and to embrace the diversity of your team. This can mean asking colleagues about their daily routine, their family, their home office, their hobbies and interests, or simply what they are watching on Netflix.

At the same time, the pandemic has affected everyone differently, and some people may be finding the adjustment harder than others. Keep that in mind when communicating with your team. Be open to personal connection, but mindful about privacy.

5. Be curious.

Working remotely can present unique challenges to your team members based on their personalities and communication styles. Some will assert themselves naturally while others may find it more difficult to do so. Introverts may find it easier to adjust while extroverts may struggle. Take care to engage your team directly in their preferred styles.

When leading a video meeting, welcome each person by name. Do this even with larger groups so that people will turn their cameras on. They will feel included and appreciated, which will enhance their contributions.

Cut the agenda in half and ask more questions. Leave room for “virtual white space”. Even if pauses can be uncomfortable, they enable ideas to emerge and create space for different views.

6. Raise the bar.

People change more easily than expected. The pandemic has shown us that we are adaptable and can be productive despite challenging circumstances. Drive momentum by leaning into change. Develop an innovation task force or identify change initiatives that may be accelerated. Organizational capacity for change has increased. Now is the time to raise the bar on what’s possible for you and your team.

Credit: 

McCarthy Tetrault LLP, Daniel Siracusa, published on Lexology.com on June 29, 2020

 

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COVID CRACKDOWN ON TOWING INDUSTRY - ONTARIO GOV. TASK FORCE ANNOUNCED TODAY

The Ontario government is establishing a task force to improve provincial oversight of the towing industry. The task force will help develop a regulatory model that will increase safety and enforcement, clarify protections for consumers, improve industry standards and consider tougher penalties for violators.

The government is taking this action in response to concerns raised about incidents of criminal activity and violence in the towing industry.

The task force will review a number of topics related to the towing industry, which could include provincial oversight of safety, consumer protection, improved industry standards, training and background checks.

As part of the review, the task force may consider opportunities for increased protections for consumers against the first-to-scene unethical business practices, insurance savings through a crackdown on insurance fraud rings or improved consumer choice for payments and repairs. The province is also reviewing ways to improve our transportation system by clearing accidents more quickly which would minimize lane reductions and reduce congestion on our highways.

Membership of the task force will include representatives from the Ministry of Transportation, the Ministry of the Solicitor General, the Ministry of Government and Consumer Services, the Ministry of Municipal Affairs and Housing, the Ministry of Labour, Training and Skills Development, the Ministry of Finance and the Ontario Provincial Police. Once the task force has developed proposals for discussion and comment, it will be consulting with industry, municipalities, and public safety experts.

DID YOU KNOW

  • There are approximately 1,600 tow truck companies registered in the Ministry of Transportation’s Commercial Vehicle Operator’s Registration (CVOR) program. A valid CVOR certificate is required to operate a tow truck.

  • The Consumer Protection Act contains specific tow and storage services rules to help protect consumers who need a tow or roadside assistance in Ontario. The Ontario government is currently reviewing the Act and consumers can provide input through a survey until July 17, 2020, on a number of issues, including towing.

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EMERGENCY ORDERS EXTENDED TODAY TO JULY 10 - RULES FOR INDOOR SPORTS FACILITIES RELAXED.

The Ontario government has extended all emergency orders currently in force that were made under s.7.0.2 (4) of the Emergency Management and Civil Protection Act until July 10, 2020, while removing restrictions that were limiting access to certain sport training facilities.

The extension of the emergency orders will allow key measures needed in the fight against COVID-19 to continue, including allowing frontline health care providers and public health units to redeploy staff where they are needed most, while providing the government with the tools it needs to successfully steer the province through the next stage of reopening and beyond.

In addition, the government has removed certain restrictions for Stage 2 indoor sports and recreational fitness activities facilities.

This will enable the facilities to be used by more businesses and organizations to train amateur or professional athletes, or to run certain non-contact amateur or professional athletic competitions.

In all cases, facility owners would only be able to permit activities to occur in a way that meets public health requirements.

These changes will also enable many sports and recreational organizations around the province to again offer  sport training programming, helping more people return to sport in Ontario.

On June 24, Ontario announced the extension of the Declaration of Emergency to July 15, allowing the province to continue to make or amend emergency orders under the Emergency Management and Civil Protection Act. The government continues to review all these emergency orders to determine when and if it is safe to amend or lift them as restrictions are eased and more places in the province reopen in a safe and measured way.

A full list of emergency orders can be found on the e-Laws website under the Emergency Management and Civil Protection Act and at Ontario.ca/alert.

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CLK SENIORS - ANOTHER $14 M FINANCIAL SUPPORT FOR PROGRAMS SUPPORTING YOUR WELL-BEING. WHAT YOU NEED TO KNOW TODAY.......

The Ontario government is providing up to $4 million for the Seniors Community Grant Program, a significant increase over last year.

This funding will help non-profit organizations, local services boards, or Indigenous groups develop programs for seniors that focus on combatting social isolation, promoting seniors' safety and well-being, improving financial security and making communities age-friendly.

This year's grants will range from $1,000 to $100,000 and will fund projects that will:

  • Help older individuals and couples receive the support they need in their community;

  • Ensure seniors are less at risk for neglect, abuse and fraud, and that their rights and dignity are protected​;

  • Ensure more older adults are connected and engaged, reducing social isolation;​​ and,

  • Provide more opportunities for older adults in employment and volunteering, achieving greater financial security and engagement within the community.

In the past, the Seniors Community Grant Program has supported community-based activities like seniors' fitness classes, lawn bowling, brain fitness activities, multicultural dance, along with a public education and awareness campaign that challenges the myths and stereotypes that portray older adults as frail, out-of-touch, technologically illiterate, and no longer employable.

The application period for the Seniors Community Grant Program is now open and will close on August 7, 2020. Unincorporated and incorporated not-for-profit organizations, local services boards, or Indigenous groups must submit applications to Transfer Payment Ontario (formerly Grants Ontario) online at Ontario.ca/GetFunding.

DID YOU ALSO KNOW

  • Since the Seniors Community Grant Program was established in 2014, nearly 1,900 grants have been provided, which have positively impacted the lives of more than half a million seniors.

  • By 2023, there will be three million Ontarians over the age of 65. Older adults are the province’s fastest growing demographic.

  • Questions about the program can be answered by contacting the Ministry for Seniors and Accessibility: email: seniorscommunitygrant@ontario.ca; toll free: 1-833-SCG-INFO (1-833-724-4636); TTY (for the hearing impaired): 1-800-387-5559; fax: 416-326-7078.

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CKL POST-SEC STUDENTS - SUPPORT YOUR COMMUNITY NOW AND GET PAID BY THE GOVERNMENT - TAKE ADVANTAGE OF PAID WORK EXPERIENCE TO HELP YOUR FUTURE.

The federal government has announced the launch of the Canada Student Service Grant (CSSG), which will support post-secondary students and recent graduates as they volunteer to serve in their communities’ COVID-19 response and gain valuable experience at the same time.

The CSSG will provide these volunteers with a one-time payment of between $1,000 and $5,000 based on the number of hours they serve.

To find not-for-profit organizations looking for help during the pandemic, post-secondary students and recent graduates can use the new I Want to Help platform, which also launched today.

The Government of Canada is also helping young Canadians find paid work placements and get the skills they need to start their careers. These activities include:

  • Supporting an additional 20,000 job placements for post-secondary students in high demand sectors. A new investment of $186 million in the Student Work Placement Program will help more post-secondary students across Canada get paid work experience related to their field of study. This funding is in addition to the $80 million that was announced on April 22, 2020.

  • Creating 10,000 new job placements for young people between the ages of 15 and 30 through the Canada Summer Jobs program. New funding of over $60 million will help expand the current work placement target from 70,000 to 80,000, creating 10,000 more placements for young people aged 15 to 30. The program provides wage subsidies to employers so they can give quality work experience to young Canadians and help them develop the skills they need to transition into the labour market.

  • Creating 5,000 new internships through Mitacs for college and university students across Canada with small and medium-sized businesses. Funding of $40 million will also help develop partnerships with new industries, and offer internships to students in more areas of study.

  • Increasing funding to the Digital Skills for Youth (DS4Y) program by $40 million to help post-secondary graduates gain professional work experience. DS4Y provides wage subsidy opportunities to help connect young people with small and medium-sized businesses and not-for-profits.

  • Creating over 3,500 new job placements and internships through the Youth Employment and Skills Strategy. New funding of $34 million, in addition to the over $153 million announced on April 22, will support programs serving high-demand sectors such as health, community services, and information technology, and help other sectors to recover.

  • Providing $6.7 million for the Computers for Schools Plus (CFS+) program. The partnership-based program refurbishes donated surplus computers and electronic devices, and provides them to schools, libraries, not-for-profit organizations, Indigenous communities, and low-income Canadians. It also offers paid, practical work internships for young people, through which they can develop advanced digital skills as well as experience in project management, teamwork, and communications.

  • Creating 5,000 to 10,000 more work-integrated learning opportunities through the Business + Higher Education Roundtable (BHER). The BHER will launch a national challenge for students to develop creative solutions in response to current and future sector needs as defined by Canadian industry. The national student challenge will help connect Canada’s small and medium-sized businesses with the next generation of talent in Canada.

The Canada Student Service Grant and I Want to Help platform are part of the nearly $9 billion in support for post-secondary students and recent graduates announced by the Government of Canada on April 22, 2020. The funding for Mitacs, DS4Y, CFS+, and the Business + Higher Education Roundtable also fall under this funding.

As part of its COVID-19 Economic Response Plan, the Government of Canada is providing support for students who want to make a difference in their communities, while gaining the skills and supports needed for future success whether that be in their studies or in the job market. This support also includes the Canada Emergency Student Benefit, and temporary changes to the Canada Summer Jobs and Canada Student Grants and Loans programs.

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DESIGNATING A BENEFICIARY FOR YOUR RRSPs - AVOID UNINTENDED TAX CONSEQUENCES AND A LEGACY OF LITIGATION FOR YOUR FAMILY.

Generally, you can designate a beneficiary for your RRSPs.

If you do, generally the RRSP will be paid to your designated beneficiary on your passing. The RRSP will not form part of your Estate and, therefore, not be subject to Ontario’s estate administration tax.

However, the problem: the federal Income Tax Act provides that, even though the RRSP will pass to your designated beneficiary (outside of your Estate), tax will be payable by your Estate on those funds as of your death (as if you had withdrawn those funds). This can create a burden on your Estate and its beneficiaries, which they may perceive as unfair. In other words, your designated beneficiary gets the RRSP funds, but not the corresponding tax burden created by the Income Tax Act on your death.

This often causes litigation, which you were likely trying to avoid in your Estate plan.

Careful estate planning is important, including considering potential tax issues that can arise on your death.

There are some ways to potentially avoid this, such as:

1.            Having an insurance policy, payable to your estate, for example, that will pay the tax burden on the RRSPs that you designate to someone on your death;

2.            Rolling over your RRSPs to your spouse or a dependent child, if you meet the specific requirements of the Income Tax Act to do so (consultation with an accountant or tax-experienced lawyer would be helpful); and/or

3.            Designate your Estate as the beneficiary of your RRSPs – although this will mean estate administration tax is likely payable on those funds, that is likely less of a financial burden to your beneficiaries than the alternative. The Estate can receive and pay the tax on the RRSP on your death using this approach. You can even specify in your estate plan that the net amount is payable to a specific person, such as the person you could have designated as your beneficiary on the RRSP.

Estate planning is important. To avoid unintended results and possibly creating conflict among your family member beneficiaries, creating your plan with a good, qualified estate planning lawyer is well worth the modest investment.

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WHAT IF I AM FIRED? WHAT SHOULD I EXPECT FOR SEVERANCE? "PAY IN LIEU" EXPLAINED.

If you are terminated by your employer and:

[1] firstly, there is no “just cause” for your termination; and

[2] secondly, you do not have a written employment agreement or, if you do, there is no clause restricting you to only the statutory notice of termination required by the Employment Standards Act, 2000 of Ontario (the “ESA”) (or, if there is a such a clause, it is not enforceable against you – refer to the checklist in our earlier blog about this),
then, in addition to your statutory entitlements on termination under the ESA, you are likely entitled to “common law” reasonable notice of termination.

An employee’s termination entitlements at “common law” generally are significantly more than those required by the ESA.

COMMON LAW” REASONABLE NOTICE - EXPLAINED:

Employment in Ontario is purely contractual between the employer and the employee. Employers can terminate employees at any time – they do not need a reason.

However, if they do terminate, the obligation of giving “reasonable notice” is imposed by the law of Ontario, both by the ESA and ‘judge-made’ law, subject to any written employment entered by the employer and the employee that varies or changes the general law of Ontario applicable to employment terminations.

Unless the employer and employee agree otherwise in their written employment agreement, the law in Ontario imposes an obligation on employers to give reasonable notice before terminating an employee generally. Either an employer must give this reasonable notice before terminating or, if they do not, they will have to pay to the employee an equivalent amount for that reasonable notice that was not given. Employees must give reasonable notice before resigning, too, but that notice is generally much shorter.  

Generally, “common law” reasonable notice by employers is: (a) determined by the Court, often in wrongful termination lawsuits commenced by employees; and (b) determined based on multiple factors in each case, such as the employee’s age, position, responsibility, years of service, compensation received and ability to find alternative employment.   

Effectively, an obligation to give reasonable notice is designed to lessen the impact of a termination, particularly for the employee. The employer has the opportunity to take the necessary steps to replace the employee and the employee can seek and obtain comparable, alternate employment.

If an employer terminates without providing reasonable notice, but had an obligation to do so, the employer has breached the parties’ employment relationship and will likely have to pay damages equivalent to the amount of reasonable notice that should have been provided to the employee.

These damages are commonly called “pay in lieu of notice” and are calculated based on all, or the global, compensation and benefits the employee would otherwise have earned had he or she actually continued to be employed during the reasonable notice period. Generally, this calculation will include salary, pension contributions, bonuses, commissions, equity grants, if any (such as stock options, etc.), corporate vehicle use and other taxable and non-taxable benefits, if they formed part of the employee’s regular and recurring compensation during employment.

These damages also incorporate and include the statutory notice required by the ESA. However, an employer must actually pay to the employee any statutory severance pay required by the ESA, by lump sum, based on a specific formula set out by the ESA, unless the employee agrees otherwise. In other words, the employer cannot satisfy its statutory severance pay obligation by giving notice of termination to the employee – rather, it must actually be paid.

There is no ‘golden rule’ to accurately predict the amount of reasonable notice for each case of termination. It is difficult to predict, often. Some lawyers use the ‘month-per-year’ rule of thumb, but that is not the law. Every case is different, generally, and must be analyzed based on the specific circumstances of the case. Generally, however, it is reasonably safe to assume that the longer the years of service, older the employee and more responsibility the employee had, the longer will be the reasonable notice period in the case.

Reasonable notice rarely exceeds two (2) years, but there are a few cases in which the Court exceeded this commonly accepted maximum for reasonable notice in Ontario.

Generally, an employee’s entitlement to reasonable notice will be dependent on that employee’s specific factors, all of which must be considered together in that particular case.

WHAT IS ‘WORKING NOTICE’?  

If an employer decides to give reasonable notice of termination before terminating (i.e., during the relationship), it is commonly referred to as ‘working notice’. Employers often use ‘working notice’ to avoid paying an amount to the employee for reasonable notice after termination – it can significantly reduce the liability of the employer. This way, they derive more value, too, because the employee will continue to work for the employer during the reasonable notice period (as opposed to being terminated abruptly, in which case the employer will likely have to pay the equivalent amount for the reasonable notice that was not given to the employee).  

During the working notice period, the employee continues to work ordinarily and the employer continues to pay the usual compensation and benefits – effectively, a status quo arrangement. The employer may progressively discipline the employee during the working notice period and, if proper “just cause” arises, may terminate the employee without compensation. Generally, the employee will be entitled to some time away from work, reasonably, for the purpose of searching for and obtaining alternative employment, such as attending job interviews, etc.

If the ‘working notice’ period is equal to or more than what the Court would determine to be reasonable notice of termination, the employer will not have to pay the employee terminated-related compensation when the working notice period ends. If the working notice is too short, the employer may still have to pay common law reasonable notice at the end of the working notice period. Every case has to be analyzed based on the specific circumstances.

CONCLUSION – HAVE A WRITTEN EMPLOYMENT AGREEMENT:

Most employers wish to avoid having to deal with “common law” reasonable notice – it is both unpredictable and very expense, especially if the employee sues the employer for wrongful termination alleging insufficient notice was given or paid to the employee.

In order to avoid the “common law” being applied to the employment relationship, there must be a written employment agreement properly entered by the parties before the relationship starts. If so, the employer can avoid the uncertain and potentially expensive outcome the common law may impose.

Therefore, from an employer’s perspective, at least, there should always be a written employment agreement entered, which clearly and simply outlines the employee’s entitlements in the event of a termination without cause, particularly if they may be less that what the “common law” may award to the employee. In addition to minimizing costs, enforceable termination provisions also offer more certainty to both parties if the relationship ends.

 

 

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ONT GOV SPENDING $13 MILLION ON NEW YOUTH AND FAMILY INNOVATIVE PROJECTS. WHAT YOU NEED TO KNOW TODAY........

The Ontario government is investing more than $13 million to support community- driven and youth-led projects to improve the well-being of children, youth, and families facing economic and social barriers.

The funding will flow through the 2020 Youth Opportunities Fund, a province-wide initiative that creates opportunities for young people and empowers and supports parents, guardians and caregivers. 

The 2020 Youth Opportunities Fund will provide financial support to 43 community organizations that will benefit youth aged 12 to 25, and their families. Projects receiving funding this year include:

  • Black Moms Connection ― focusing on economic empowerment for Black mothers across the Greater Toronto Area (GTA).

  • Immigrants francophones d'Afrique pour l'intégration et le développement (IFAPID) to support newcomers from Francophone African nations to navigate financial systems in Canada.

  • Earthling Art Collective ― to provide development and mentorship opportunities for youth leaving care and the justice system in Thunder Bay.

  • Miziwe Biik Aboriginal Employment & Training ― to help Indigenous youth in the GTA access employment and training opportunities in the skilled trades.     

The Youth Opportunities Fund provides funding through the following three granting streams:

  • Youth Innovations ― Provides youth facing multiple barriers with the resources they need to design and deliver new and inspiring solutions to issues that matter to them and their communities.

  • Family Innovations ― Invests in local, community-driven groups delivering culturally relevant projects that empower and support parents, guardians and caregivers who face barriers and challenges to child and family wellbeing.

  • System Innovations  Supports organizations that are strengthening the quality and responsiveness of systems so that they may work better for young people facing multiple barriers.

DID YOU ALSO KNOW

  • Youth Opportunities Fund grants are administered by the Ontario Trillium Foundation.

  • Applications for the 2021 Youth Opportunities Fund grants will open in fall 2020.

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ONLY IN ONTARIO - SAYING "SORRY" CAN LIMIT OR ELIMINATE THE DAMAGES YOU PAY FOR DEFAMING ANOTHER.

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

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

This is uniquely an Ontario-only legal initiative.

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

Not anymore.

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

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

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

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

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

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

Apology Act, 2009

S.O. 2009, CHAPTER 3

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

No Amendments.

Definition

1. In this Act,

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

Effect of apology on liability

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

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

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

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

Exception

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

Evidence of apology not admissible

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

Exception

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

Criminal or provincial offence proceeding or conviction

3. Nothing in this Act affects,

(a) the admissibility of any evidence in,

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

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

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

Acknowledgment, Limitations Act, 2002

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

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

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

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

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

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FEDS EXTEND TEMPORARY LAY OFF PERIOD FOR FEDERALLY-REGULATED EMPLOYEES (BANKS, TRANSPORTATION, TELECOMMUNICATIONS, ETC.). WHAT YOU NEED TO KNOW TODAY ABOUT LAYOFFS DURING THE PANDEMIC.

The federal government has announced important changes to the Canada Labour Standards Regulations, which temporarily extend the permitted temporary layoff period for federally regulated employees laid off due to the pandemic.

According to a government press release, the amendments temporarily extend these time periods by up to 6 months as follows:

  • for employees laid off prior to March 31, 2020, the permissible time period is extended by 6 months or to December 30, 2020, whichever occurs first; and

  • for employees laid off between March 31, 2020, and September 30, 2020, the time period is extended until December 30, 2020, unless a later recall date was provided in a written notice at the time of the layoff.

These changes, which came into effect on June 22, 2020, do not apply to employees who are covered by a collective agreement that contains recall rights.

These changes also do not apply to employees whose employment had already been terminated prior to the coming into force of the amendments.

More information is available here:  

https://www.canada.ca/en/employment-social-development/news/2020/06/backgrounder.html

The amended regulations were not yet available as of 5:00 p.m. E.D.T. on June 23, 2020.

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ONTARIO STATE OF EMERGENCY EXTENDED TO JULY 15. ALL ORDERS REMAIN IN EFFECT.

In consultation with the Chief Medical Officer of Health, the Ontario government has extended the provincial Declaration of Emergency under s.7.0.7 of the Emergency Management and Civil Protection Act to July 15, 2020. 

The provincial Declaration of Emergency enables the government to make, and as needed amend, emergency orders that protect the health and safety of all Ontarians. Emergency orders in force under the Declaration of Emergency include those allowing frontline care providers to redeploy staff to areas most in need, limiting long-term care and retirement home employees to working at one home, and enabling public health units to redeploy or hire staff to support the province's enhanced case management and contact tracing strategy. These measures continue to be needed to protect seniors and other vulnerable populations from the threat of COVID-19. The extension of the Declaration of Emergency will allow the province to make or amend emergency orders as needed as it continues to ease restrictions in support of its phased reopening.  

In consultation with the Chief Medical Officer of Health, the government will continue to monitor public health trends related to COVID-19 and assess on an ongoing basis whether the provincial Declaration of Emergency needs to be extended further. The government will also continue to review emergency orders currently in place to determine when and if it is safe to amend or lift them as more places in the province are allowed to reopen in a safe and measured way.

As of June 24, 33 public health unit regions have entered Stage 2 of the Framework for Reopening our Province, allowing more businesses and services to open and getting more people back to work. The Windsor-Essex County public health unit region remains in Stage 1 and the situation in the region will continue to be assessed on an ongoing basis.

A full list of emergency orders can be found on the e-Laws website under the Emergency Management and Civil Protection Act and at Ontario.ca/alert.

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IMPORTANT NEW CASE FAVOURABLE TO EMPLOYEES WITH WRITTEN EMPLOYMENT AGREEMENTS - ANOTHER JUDICIAL ATTACK ON EMPLOYERS TRYING TO LIMIT REASONABLE NOTICE.

Ontario’s Court of Appeal, our highest provincial Court, recently released a very important decision affecting the enforceability of written employment agreements and employers’ efforts to limit reasonable notice to only the statutory minimums in Ontario, rather than the judge-made, common law extended entitlements.

This case is favourable to employees who already have existing, written employment agreements. 

The employee sued his employer for wrongful dismissal. He moved for “summary judgment” (i.e., a decision without a trial, as a trial would allegedly be unnecessary in the case). The employee claimed entitlement to damages because the employer did not provide him with common law reasonable notice of dismissal. The employee took the position that the termination provisions in his employment contract were void because they contracted out of the minimum standards of the ESA. The employer acknowledged the cause termination provision in the employment agreement was void because it violated the ESA.

However, based on earlier cases in Ontario, the employer argued that the without cause termination provision was valid, and because the employer was not alleging cause, it could rely on the without cause provision as a stand alone, insulated provision of the contract.

The employee acknowledged that the without cause provision alone was valid and enforceable.

The issue was if the illegality of the cause provision rendered the without cause provision unenforceable.

The Court of Appeal addressed the key issue - whether the two clauses (“just cause” and “without cause”) should be considered separately or whether the illegality of the just cause provision impacted the enforceability of the without cause provision.

The Court said an employment agreement must be interpreted as a whole and not on a piecemeal basis. The correct analytical approach is to determine whether the termination provisions in an employment agreement read as a whole violate the ESA. While courts will permit an employer to enforce a rights-restricting contract, they will not enforce termination provisions that are in whole or in part illegal. In conducting this analysis, the Court of Appeal held it is irrelevant whether the termination provisions are found in one place in the agreement or separated, or whether the provisions are by their terms otherwise linked. The Court found that the motion judge erred because he failed to read the termination provisions as a whole and instead applied a piecemeal approach without regard to their combined effect.

The Court also concluded that it was irrelevant that the employer ultimately did not rely on the just cause termination provision. Rather, the enforceability of a termination provision must be determined at the time the employment agreement was executed.

The Court also disregarded the severability clause in the employment agreement, holding that a severability provision cannot have any effect on contract provisions that have been made void by legislation. Having concluded that the just cause and without cause provisions were to be understood together, the severability clause could not apply to sever the offending portion of the termination provisions.

This is an important decision for employment law in Ontario, favourable to employees, given that many employment agreements purporting to limit notice entitlement to only the Ontario statutory minimums remain in circulation.   

The Case:

Waksdale v. Swegon North America Inc., 2020 ONCA 391

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HOW DO I KNOW IF I HAVE TO REPAY THE CERB? WILL I GET IN TROUBLE? HOW DO I REPAY? CAN I REPAY OVER TIME? EVERYTHING YOU NEED TO KNOW IF YOU WERE NOT ELIGIBLE FOR THE CERB, BUT RECEIVED IT.

Find out if you are entitled to the Canada Emergency Response Benefit here:

https://www.canada.ca/en/revenue-agency/services/benefits/apply-for-cerb-with-cra/who-apply.html

The CERB is now available for a total of 24 weeks. 

When do you have to repay the CERB?

You must repay the CERB if you no longer meet the eligibility requirements for the 4-week period in question.

Choose the situation that applies to you

Earned employment or self-employment income earlier than expected

Applied for and got the CERB from both EI/Service Canada and from the CRA for the same eligibility period

Applied for the CERB but later realized you’re not eligible

None of the above

This could happen if:

  • you earned employment or self-employment income earlier than expected

  • you applied for the CERB but later realize you’re not eligible

  • you receive a CERB payment from both Service Canada and the CRA for the same period

If you applied for the CERB twice in one period

If you applied for the CERB or EI with Service Canada, and then later applied for the CERB with the CRA for the same eligibility period, you applied twice. If this happens, you will have to return or repay the overpayment.

Do I have to repay my CERB if I get rehired or find a new job?

You are required to repay the CERB if you no longer meet the eligibility requirements for the 4-week period in question. For example, you applied for the 4-week period of April 12 to May 9. At the time you applied, you expected to have little or no work or income for that 4-week period. But you have just found out your employer has rehired you and will give you back-pay for that same 4-week period. In this situation, you will need to repay the CERB for that 4-week period of April 12 to May 9.

Repayment conditions

The conditions around paying back the CERB are different if you’re paying back your first eligibility period, or a subsequent period.

For your first eligibility period

If your employment or self-employment income was $1,000 or less (before deductions) for at least 14 days in a row during this 4-week period, you do not need to repay the CERB.

For subsequent eligibility periods

You will need to repay the $2,000 for an eligibility period if you earned or will earn more than $1,000 (before deductions) from employment or self-employment income during that period.

Recognize CERB repayment scams

Beware of fraudulent emails, texts or calls claiming to be from the CRA about repaying the CERB or requesting personal information.

For more on what to expect when we contact you, and what information we ask for, go to Protect yourself against fraud.

How to return or repay the CERB

If you received the CERB from the CRA, you must send your payment back to the CRA. If you received the CERB from Service Canada, you must send it back to Service Canada.

Send your payment back to the CRA

If you were paid by direct deposit or don't have the original CERB chequeIf you still have the original CERB cheque

Send your payment back to Service Canada

If you received your CERB from Service Canada (EI), you must send it back to Service Canada.

Impact on tax slips

The CERB is taxable. You will receive a T4A tax slip on the amount of CERB you receive.

If you repay the CERB, the CRA won’t issue a T4A for that payment. To ensure that we don’t issue slips improperly, you need to repay your CERB before December 31, 2020.

If you need more time to pay

If you want to repay your CERB but need more time, contact the CRA to ensure you have an agreed upon payback schedule by December 31, 2020.

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$100,000 DAMAGES FOR POSTING INTIMATE ONLINE PICS - THERE IS A CONSEQUENCE TO WHAT IS DONE ONLINE.

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

The Ontario Court is increasingly awarding significant damages against those who do so. For example, in a case called Jane Doe 464533 (the Plaintiff’s name cannot be disclosed), the Court ordered damages and costs totaling $141,000, plus an order for the offending Defendant to destroy any video or images he retains of the Plaintiff and prohibiting him from sharing any intimate images of her. He was also ordered not to communicate with the Plaintiff or any of her family.

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

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

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

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

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

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

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

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CKL BARS AND RESTAURANTS - THE RULES FOR EXPANDING OR BUILDING A NEW OUTDOOR PATIO DURING PHASE 2. WHAT YOU NEED TO KNOW.

Bars, restaurants and other approved liquor sales licensees in the CKL may be permitted to temporarily extend the size of their existing licensed patio, or temporarily add a new licensed patio.

Ontario has authorized these extensions and additions within the approved period, without a separate licence or approval, provided all of the following conditions are met:

  • the physical extension of the premises is adjacent to the premises to which the existing licence to sell liquor applies;

  • the municipality in which the premises is situated does not object to an extension;

  • the licensee is able to demonstrate sufficient control over the physical extension of the premises; and

  • there is no condition on the liquor sales licence prohibiting a patio.

Accordingly, every liquor sales licensee in the CKL should review their licences for any relevant restrictions and ensure that any extension or addition is designed to be adjacent to the licensed area and within the licensees' control.

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WHAT OUR RESTAURANTS AND BARS MUST LEGALLY DO TO PROTECT OUR SAFETY AS WE RESUME OUR DINING OUT ENJOYMENT DURING PHASE 2. WHAT YOU NEED TO KNOW.

Restaurants and bars in the CKL are required legally to take appropriate measures to ensure physical distancing of at least two metres between patrons from different households, including by:

  • using reservations;

  • limiting the number of patrons allowed in the outdoor space at one time;

  • ensuring enough space between tables (including to allow for movement); and

  • limiting access to any indoor facilities, including accessing the patio/outdoor dining area, picking up or paying for food, using washrooms or other health and safety purposes.

Ontario has also published resources, best practices and information for all restaurant and food-services workers to help prevent the spread of COVID-19 at work.

Under those requirements, servers, bartenders, cashiers, hosts, chefs, dishwashers, administrators, drive-thru operators, and maintenance staff should, among other recommendations:

  • wash their hands often with soap and water or alcohol-based hand sanitizer, including after making or receiving deliveries, touching high-touch areas, and after removing gloves;

  • sanitize surfaces and equipment often, between each transaction if possible;

  • wear gloves when interacting with high-touch areas, if possible;

  • wash clothes when they return home; and

  • immediately notify their supervisor if they are ill, complete a self-assessment and follow the instructions contained there.

In addition to facilitating clean worksites by providing access to materials and time for proper sanitization, employers can help minimize contact with customers (including by minimizing or eliminating cash and at-the-door transactions), assign staff to ensure physical distancing is maintained in congested areas, use floor markings and barriers to manage traffic flow, refuse to accept customers' re-usable bags and containers, install barriers (such as plexiglass or markings on the floor) to ensure distance between customers and cashiers, stagger shifts and lunch breaks, and hold meetings outside.

Employers will be asked to