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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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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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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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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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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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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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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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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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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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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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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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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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 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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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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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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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 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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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 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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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 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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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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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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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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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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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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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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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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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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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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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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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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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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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 track where their employees have worked. If an employee tests positive for COVID-19, the local public health unit will ask employers to provide information on where the employee worked as well as the contact information of any other employee who may have been exposed.

All employers must post and communicate COVID-19 policies to workers. These policies should cover how the workplace will operate, including, but not limited to:

  • the sanitization of the workplace;

  • how workers report illnesses to their employer;

  • how to ensure physical distancing;

  • how work will be scheduled; and

  • screening measures.

Ontario has also announced and published a workplace safety plan guide with a template to help each employer develop their own safety plan that is right for the risks and appropriate controls specific to the employer's workplace.

Here is a link to the guide: https://www.ontario.ca/page/develop-your-covid-19-workplace-safety-plan?_ga=2.59471464.411901752.1592266532-490993204.1575911632

Bars and other approved liquor sales licensees should also 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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DOING BUSINESS IN THE CKL - TIMES HAVE CHANGED - YOU NEED PROTECTIVE, USEFUL WORKPLACE POLICIES - WE'VE GOT YOU COVERED - 25 POLICIES; FULL COMPLIANCE WITH THE LAW - A FIXED PRICE. LET'S GET STARTED.

The "new normal" in the CKL means transforming how we conduct business, both in our stores and online. 

Conducting business has changed....and will continue to change. 

It is vital for businesses and organizations to update their business practices, particularly in terms of human resource management.  

Employers must create and establish workplace policies in your workplace. Effective workplace policies are designed not only to ensure compliance with all applicable legislation governing your workplace, but to achieve better overall employment management practices.

A few workplace policies are legally mandatory, including with respect to workplace violence, harassment and sexual harassment; the Accessibility for Ontarians with Disabilities legislation; and protocol related to breaches of privacy. It is not enough to ensure you are complying with the legislation; you are also legally required to have written policies effective in your workplace, and these policies must include certain statements.

In addition to ensuring compliance with legislation, the functional benefits of having properly structured and customized workplace policies include:

  • more effective and better management your employees;

  • setting and establishing the employees’ expectations, including to minimize wasted managerial time dealing with matters that are addressed by your Workplace Policies; 

  • better protecting your business from manipulation or being taken advantage of by employees;

  • better protecting your business from litigation, including because the Court now expects workplace policies to be established in the workplace and, if they are not, it often affects the outcome of a litigation dispute (negatively for the employer party);

  • ensuring that you avoid regulatory sanction for not having proper workplace policies in effect (e.g. a spot audit or investigation by the Ontario Ministry of Labour); and 

  • peace of mind that you are not only legally compliant with your employment obligations, but pro-actively organized and maximizing your effective management for the benefit of everyone in your workplace.

These workplace policies should be implemented: 

  • Workplace Violence, Harassment and Sexual Harassment Prevention Policy

  • Joint Health and Safety Committee Policy

  • Health and Safety Policy

  • Accommodation on the Basis of Disability Policy

  • AODA – Customer Service and Standards Policy

  • AODA – Employment Standards Policy

  • AODA – Integrated Accessibility and Information and Communications   Standards Policy

  • Privacy Breach Protocol and Policy

  • Overtime Policy

  • Personal information Protection Policy

  • Computer, Email and Internet Use Policy

  • Personal Communications and Social Media Policy

  • Conduct and Behaviour Policy

  • Discrimination and Diversity Policy

  • Smoking, Vaping and Cannabis Policy

  • Absenteeism Policy

  • Vacation and Vacation Pay Policy

  • Holiday Policy

  • Employment Expense Reimbursement Policy

  • Conflict of Interest Policy

  • Police Record Checks Policy

  • Workplace Investigations - Administrative Leaves and Suspensions

  • Deemed Legal Compliance Policy

  • Mental Health First Aid Officer Policy

Those that are not required by law are discretionary, elective policies, which we recommend you choose to establish in order to better manage your workplace.

Should you choose to proceed with purchasing the full suite, we would prepare them for you, addressing your specific needs and objectives. We may require further information from you, and will be in touch when we need any information or clarification.

Upon completion, we would provide to you a digital version of your Workplace Policy Manual. Once COVID-19 restrictions lift, we would also provide you with a hard-copy Workplace Policy Manual, which you would make available in your workplace, including for employees to review initially and refer to in future.

In addition to your Workplace Policy Manual, we would also provide to you a complementary Employment Management Assistance binder (your “EMA binder”), which would contain employment management resources specifically designed to enhance and complement your Workplace Policy Manual. Like your Workplace Policies Manual, the EMA binder would be provided to you in both hard-copy and digital formats for your convenience.

Purchasing a suite of workplace policies is a smart investment in the future of your organization, including because it potentially avoids costly legal services in future if a dispute arises, or worse, if an MOL investigation or litigation claim is commenced. The expense of this exercise is reasonable when you consider the benefit to you and your workplace and the potential avoidance of much higher legal expense in future. Furthermore, we would prepare your full Workplace Policies Manual and EMA binder for a fixed fee that we would quote to you in advance.

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THE NEW WAGE SUBSIDY EXTENSION - KEY INFORMATION NOW AVAILABLE FROM THE CRA - WHAT YOU NEED TO KNOW TO TAKE ADVANTAGE OF THE CEWS

When first introduced, the Canada Emergency Wage Subsidy (the “CEWS”) was to be available for 12 weeks ending June 6, 2020, with the possible extension by regulation to no later than September 30, 2020. The initial 12 week period was comprised of three separate qualifying periods (i.e., Period 1 – March 15, 2020 to April 11, 2020; Period 2 – April 12, 2020 to May 9, 2020; and Period 3 – May 10, 2020 to June 6, 2020).

On May 15, 2020, the Government of Canada announced Canada Emergency Wage Subsidy (the CEWS) would be extended to August 29, 2020.

However, details were not provided at that time.

Fortunately, the Canada Revenue Agency (“CRA”) has now confirmed that:

  1. the extension will be broken down into three separate four week qualifying periods (i.e., Period 4 – June 7, 2020 to July 4, 2020; Period 5 – July 5, 2020 to August 1, 2020; and Period 6 – August 2, 2020 to August 29, 2020);

  2. “the eligibility criteria will apply for the current period”, meaning, presumably, that the criteria (including the 30% revenue decline threshold) for Period 4 will be the same as for Period 3, subject to the “prior reference period” for Period 4 being June 2019 rather than May 2019;

  3. any potential changes to the eligibility criteria would commence as of Period 5 and/or Period 6.

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STILL WORKING AT HOME? COULD IT BE THE "NEW NORMAL" - LEGAL TIPS TO MAXIMIZE THE EXPERIENCE, BUT MINIMIZE THE LIABILITY EXPOSURE. WHAT YOU NEED TO KNOW, LEGALLY, ABOUT REMOTELY WORKING IN FUTURE.

As we gradually re-open in the CKL, many of us remain working at home remotely.

In fact, for some of us, this may be the “new normal”, even as our workplaces fully re-open to traditional operations.

Working at home has its own issues, legally speaking.

Here is a tip sheet for best practices for working at home, specifically about:

  • managing time and working overtime;  

  • ensuring productivity and accountability;  

  • accommodation to the home work environment; and

  • security, confidentiality and privacy issues.  

“Hours of Work and Overtime

The Employment Standards Act, 2000 (Ontario) (the “ESA”) sets out limitations for hours of work for many positions and industries. These ESA limitations continue to apply to remote workers. Employers should be mindful that remote workers may end up working longer hours, either by choice, mistake or simply in a good faith effort to be more productive. It can be easier for remote workers to allege, maliciously or innocently, that they are owed additional compensation or overtime of which the employer was unaware and had not expected. In a remote setting, the employer will often be without the usual level of control, paper records or tracking to refute what has been alleged.

In order to avoid contravening the ESA and minimize liabilities from claims for overtime pay, we recommend that employers draft a work-from-home (“WFH”) policy, which will help establish clear expectations for your employees. Such a policy should do the following:

  • Set out expectations and limitations regarding hours of work per day or week, and also set out specific working hours during the day;

  • Require employees working flexible hours to track the hours they work each day to limit the amount of work performed and to ensure they are generally not exceeding the daily or weekly maximums;

  • Require that any overtime be preapproved in writing, with an explanation as to the nature of the work that is being performed (and even an explanation as to why such work could not be completed within “regular” hours); and

  • Require that employees submit a written report regarding the overtime that has been performed (and description of the work that was performed).

Employers could also consider setting “dark hours,” depending on the nature of their business, when no employees should be logging on or responding to emails or calls.

Employee Productivity and Accountability

Another concern with remote working is maintaining and tracking employee productivity and accountability that would normally be expected and demanded in a regular working environment. It is understandable that employee productivity may drop when working from home because of technical reasons, distractions, lack of office resources, communication difficulties and the inability to complete certain tasks remotely.

To ameliorate these concerns, we recommend that employers institute or consider the following:

  • Team meetings and check-ins held no less than bi-weekly;

  • Using time tracking software, login software or requiring employees to self-monitor and self-report (a journal) their time during the workday;

  • Using an instant messaging service such as Microsoft Teams or Google Hangouts, etc.

  • Setting out working hours per day or week, noting, however, that flexible hours may also lead to higher productivity if the employee has other commitments during the day;

  • Offering support to employees and making sure they have the right tools;

  • Finding ways to encourage and recognize your employees, even if virtually or remotely;

  • Implementing a clear process for dealing with unproductive employees, which can include setting out clear short-term and long-term goals with the employee, and establishing regular check-ins with an unproductive employee to see if they are meeting their goals.

If you are considering disciplining an employee working from home, the usual best practices should apply. These include documentation, progressive discipline (e.g. verbal warning, written warning, suspension, termination) and performance improvement plans as appropriate.

Always remember that flexibility in respect of remote work will place greater strain on supervision. Supervising managers can be assisted by delegating some of their work to others so that they can focus on supervising and confirming outputs.

Accommodation

Employers also have to consider the struggles and hardships that some employees may face as a result of the pandemic and the shutting down of various services, such as schools and daycares. For employees who are parents, guardians or have any dependents, including seniors, quarantine presents additional burdens and responsibilities. The employer has a duty to accommodate such employees to the point of undue hardship.

In the present circumstances, accommodating based on family status may include allowing employees to work flexible or alternate hours or even reduced hours on an unpaid basis.

We recommend that the employer’s WFH policy establish employer expectations for working flexible hours, and set out the duration of the option to work flexible hours. If the ability for employees to work flexible hours is intended to be limited for the duration of the COVID-19 crisis, this should be made clear. As with any policy, it’s important to make clear that the company reserves the right to alter or terminate the policy at any time as circumstances warrant.

It is key that the WFH policy be consistently applied to reduce risk of claims that the employer is providing WFH arrangements on a discriminatory basis. It is also important to note that regardless of the specific WFH policy in place, an employee’s request for accommodation should be considered and responded to on a case-by-case basis.

Security and Confidentiality

In recent weeks, there have been reports of increased cyberattacks as a result of the growing pains associated with adopting remote working technologies. As a result, the threat posed by cyber attackers and resulting losses for businesses is high. In addition, remote working creates new challenges for maintaining a company’s confidential information, as conference calls may be overheard or emails may be read by unintended persons.

In order to maintain the security and confidentiality of business operations, we recommend that employers take the following actions:

  • Implement training sessions for employees who are new to remote working for cyber security and confidentiality best practices;

  • Educate employees on best practices when dealing with communications from unknown third parties;

  • Refresh employees on the company’s security and confidentiality policies;

  • Restrict the use of public or unsecure networks;

  • Use VPN or two-authentication software;

  • Ensure that the WFH policy addresses the importance of maintaining the confidentiality of the company’s information and that it is not inadvertently disclosed to individuals as a result of the home environment.

    • Consider having employees submit their proposed methods for ensuring the confidentiality of company information.”

Credit:

Aird & Berlis LLP/Aird & McBurney LP – Fiona Brown, Michael F. Horvat and Daria (Dahsha) Peregoudova, published on Lexology.com on June 19, 2020

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THE NEW COVID-19 ALERT APP IS ON THE WAY FROM BOTH GOVERNMENTS - YOUR PRIVACY? WHAT YOU NEED TO KNOW ABOUT THE NEW APP.

As CKL reopens gradually, the Ontario government plans to improve case and contact management to more quickly test, trace and isolate cases of COVID-19 to stop the spread of the virus and prepare for any potential future waves.

These additional measures include a comprehensive case and contact management strategy, Protecting Ontarians through Enhanced Case and Contact Management, and, in partnership with the federal government, a new made-in-Ontario national app called COVID Alert.

The government's enhanced strategy focuses on strengthening and standardizing case and contact management by:

  • Ensuring that all new cases and their close contacts are identified early, contacted quickly, investigated thoroughly and are followed up with daily for up to 14 days;

  • Supporting public health units with up to 1,700 additional staff from Statistics Canada;

  • Improving technology tools by modernizing the integrated Public Health Information System (iPHIS) through the implementation of a new custom-built COVID-19 case and contact management system; and

  • Launching a privacy-first exposure notification app to alert Ontarians when they may have been exposed to COVID-19.

Ontario is providing updated case and contact management guidance for all public health units to ensure consistency across the province. To continue to ensure cases and their contacts are reached in a timely and effective way to prevent the spread of COVID-19, public health units will:

  • Connect with cases, and with all individuals who have had close contact with a positive case, within 24 hours of being identified;

  • Direct all close contacts to self-isolate for up to 14 days;

  • Follow up with close contacts every day for the duration of their self-isolation; and

  • Advise testing of all appropriate close contacts.

To augment the current provincial capacity of approximately 2,000 case managers and contact tracers, Ontario is providing additional contact tracing staff. New and expanded capacity will be provided through Statistics Canada with access to up to 1,700 additional staff, available to all provinces, for contact tracing. Public Health Ontario will continue overseeing the training and coordination of these additional resources.

Over the summer and into the fall, Ontario will continue to build a supplementary pool of contact tracers from the Ontario Public Service and the broader public sector for additional surge capacity, as required. This will allow public health units to perform their other critical functions, including inspections of food premises and water in recreational facilities, and vaccinations.

To help Ontarians stay safe as the province reopens and social interactions increase, Ontario will be partnering with the federal government to launch COVID Alert, a new privacy-first exposure notification app, within the next two weeks. The made-in-Ontario app was developed by the Ontario Digital Service (ODS) and a group of volunteers from Shopify. One of the overarching principles is ensuring the privacy and security for all users, which is why the government will leverage BlackBerry volunteer expertise to audit the security and privacy of the application, in addition to the province's internal security reviews.

Users will be able to voluntarily download the app and be notified anonymously if they have been exposed to someone who has tested positive for COVID-19 in the last 14 days. In Ontario, the app will also provide users with quick access to Ontario's public health advice and resources, and recommend any necessary actions, such as monitoring for symptoms, self-isolation or appropriate next steps on getting tested. Using a national application will help ensure that Ontarians are notified, regardless of which province they are in, helping us towards the goal of ensuring we can all move more freely and safely.

Ontario is also implementing a new user-friendly case and contact management system that will integrate with COVID-19 laboratory results from the Ontario Laboratory Information System (OLIS) data, making current processes significantly more efficient and reducing the administrative burden for public health unit staff. A single central system will enable the province to identify provincewide regional trends and hotspots, while protecting personal health information. Custom-built on the Salesforce platform, the new system will also allow for a remote workforce, enabling contact tracing to be quickly ramped up when required.

Everyone should continue to follow public health guidelines to stay safe, including physical distancing with people not in your social circle, wearing a face covering if physical distancing is a challenge, washing your hands thoroughly and frequently, and, if you think you have COVID-19 or have been in contact with someone who has COVID-19, getting tested.

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EVICTIONS OFFICIALLY BANNED IN ONTARIO IF YOU QUALIFY FOR PANDEMIC RENTAL ASSISTANCE - NO LOCKOUTS OR SEIZURES, EITHER. DEADLINE TO APPLY IS AUG. 31. WHAT YOU NEED TO KNOW TODAY ABOUT COMMERCIAL TENANCIES IN THE CKL.

As expected, yesterday the Ontario government passed the Protecting Small Business Act, temporarily halting or reversing evictions of commercial tenants and protecting them from being locked out or having their assets seized during COVID-19.

The legislation applies to businesses that are eligible for federal/provincial rent assistance for evictions from May 1, 2020 until August 31, 2020.

Landlords and tenants are encouraged to participate in the Canada Emergency Commercial Rent Assistance (CECRA) for small businesses.

The pause on evictions does not apply to those participating in CECRA for small businesses, as the program requires landlords to enter into a rent reduction agreement with their impacted small business tenants and commits them to a moratorium on evictions for three months.

Did you also know: 

  • In partnership with the federal government, Ontario is committing $241 million to CECRA for small businesses, which will provide more than $900 million in support for small businesses and their landlords.

  • CECRA for small businesses provides forgivable loans to eligible commercial landlords for the months of April, May, and June 2020. 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 governments would share the cost of the remaining 50 per cent.

  • Tenants and landlords can learn who is eligible and how to apply at Ontario.ca/rentassistance. The application deadline is August 31, 2020.

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CERB HAS BEEN EXTENDED BY THE FEDS - NOW AVAILABLE FOR A TOTAL OF 24 WEEKS. WHAT YOU NEED TO KNOW.

Today the federal government announced that the government is extending the Canada Emergency Response Benefit (CERB) by eight weeks. 

This extension will make the benefit available to eligible workers for up to a total of 24 weeks.

The government has also made changes to the CERB attestation, which will encourage Canadians receiving the benefit to find employment and consult Job Bank, Canada’s national employment service that offers tools to help with job searches. 

Over the next few weeks, the government will monitor international best practices, the economy, and the progression of the virus and, if needed, make necessary changes to the program so more people can have the support they need.

They also announced they intend to continue to review other financial supports, including the Canada Emergency Wage Subsidy (CEWS) and Employment Insurance (EI). 

The CERB is a taxable benefit of $2,000 over a four-week period for eligible workers who have stopped working or whose work hours have been reduced, due to COVID-19.

The CERB is available to workers who:

  • live in Canada and are at least 15 years old

  • have stopped working because of reasons related to COVID-19, or are eligible for EI regular or sickness benefits, or have exhausted their EI regular or fishing benefits between December 29, 2019 and October 3, 2020

  • had employment and/or self-employment income of at least $5,000 in 2019, or in the 12 months prior to the date of their application

  • have not earned more than $1,000 in employment and/or self-employment income per benefit period while collecting the CERB

  • have not quit their job voluntarily

Notably, the CEWS was also extended, as announced on May 15. The CEWS is being extended to August 29, 2020.

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NEW RULES FOR BOTH INDOOR AND OUTDOOR WEDDINGS, FUNERALS AND RECEPTIONS.

The Ontario government has relaxed restrictions on the number of attendees permitted at indoor and outdoor wedding and funeral ceremonies. .

The government is extending the number of people allowed to attend an indoor wedding or funeral ceremony to a maximum of 30 per cent capacity of the ceremony venue.   

Wedding and funeral ceremonies taking place outdoors will be limited to 50 attendees.

For both indoor and outdoor ceremonies, those attending must follow proper health and safety advice, including practising physical distancing from people who are not from the same household or their established 10-person social circle.

The changes came into effect on Friday, June 12 at 12:01 a.m.

The maximum number of people allowed to attend indoor or outdoor wedding and funeral receptions remains at 10 people.

 

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CKL FARMERS AND FOOD PROCESSORS/MANUFACTURERS - NEW FEDERAL FUNDING FOR RETROFITTING AND OPERATING

The federal government has announced a $77.5-million Emergency Processing Fund for food producers, processors, and manufacturers, with two stated objectives:

  1. "Emergency COVID Response” to assist companies to implement changes required by COVID-19 to ensure the health and safety of workers. This funding will assist with:

    • plant retrofits or adjustments to existing operations to accommodate changes to processes and production; and

    • increasing capacity for herd management.

  2. “Strategic Investments” to assist companies to improve, automate, and modernize facilities needed to increase Canada’s food supply capacity.

Eligible applicants include for-profit organizations, cooperatives, and indigenous groups. Information on the application process is available here: 

http://www.agr.gc.ca/eng/agricultural-programs-and-services/emergency-processing-fund/?id=1591291974693

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CYBER-BULLYING AND SOCIAL MEDIA ATTACKS CAN MEAN BIG DAMAGES PAYABLE TO THE VICTIM. THINK TWICE BEFORE THAT FACE BOOK POST........

Cyber-bullying by engaging in social media attacks can mean paying significant damages to the target of the vitriol. 

In a recent Canadian case, a former husband engaged in a lengthy campaign of cyber-bullying against his former spouse, primarily to intimidate her in their custody proceeding in Family Court. 

The Court said, “This campaign took the form of a long series of venomous Facebook postings”. 

The father posted very nasty comments about his former spouse and flouted the law, in the sense that he openly declared online that he was beyond the reach of the law - a very serious mistake by him.  

The Court prohibited the husband and his new partner from any further cyber-bullying, ordered them to take down the posts or disable access to them and prohibited them from communicating with the targeted mother. 

The Court also noted the husband's conduct “harmed Ms. Candelora’s well-being, both mental and physical,” given her evidence that they caused her psychological stress that affected her ability to work and exacerbated a pre-existing medical condition.

The Court concluded that the impact on the mother, while serious, was not as dire as some other cases presented to the Court during the proceeding. Rather, the mother was mature, was not “unusually vulnerable” to cyber-bullying and does not reside near the father (they actually resided in separate provinces). .

The Court hammered the father with general damages of  $50,000, $20,000 in aggravated damages and, for good measure, added on another $15,000 in punitive damages.

“Punitive damages are warranted in order to occasion respect for the justice system,” the Court ruled. 

“One repeated aspect of the respondents’ postings was their assertion that they were beyond the reach of the courts and their disregard for court orders. This is a denunciatory, non-compensatory purpose and calls for a distinct punitive award.”

While this case was decided in Nova Scotia, it is likely a similar result could have been reached in Ontario, based on Ontario's current law regarding defamation and intrusion upon seclusion (i.e., breach of privacy).  

The Case: 

Candelora v. Feser, 2019 NSSC 370 (CanLII)

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CKL RESTAURANTS AND EATERIES - OUR CHEAT SHEET FOR YOUR PHASE 2 RE-OPENING TOMORROW TO MAXIMIZE SAFETY AND MINIMIZE LIABILITY. BON APPETIT!

Many CKL restaurants are re-opening for Phase 2 as of tomorrow, in an outdoor capacity for now.

To assist with the transition, here is a tip sheet of recommendations for ensuring a safe re-opening, while promoting the health and safety of everyone:

- patio must be open to the air; no tents, structures or canopies. Umbrellas are allowed for sun shade.

- the required distance between adjacent edges of tables is two metres.

- temporary table dividers may be installed to make physical distancing easier for restaurants with communal seating or larger tables.

- groups must be seated two metres from another group.

- ensure that a distance of two metres is maintained between customers or groups that are together. Co-mingling should be avoided.

- limit the time servers spend within two metres of customers.

- allow space for the safe circulation of customers and staff.

- consider a reservation system to avoid lines of waiting customers.

- ensure that lines of waiting customers do not come close to patio customers.

- demarcate floors with markers for any areas where a line-up may occur.

- mark the direction of travel to designate entrances and exits, pick up areas and washrooms.

- post signage promoting physical distancing upon entry.

For a complete list of the health and safety guidelines recommended by the Ontario government:

Restaurants (food premises):

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

Restaurant servers, cooks and dishwashers:

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

Bon appetit!

 

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CKL COMMERCIAL TENTANTS - YOU CANNOT BE EVICTED UNTIL THE END OF THE SUMMER. NEW RULES - WHAT YOU NEED TO KNOW.

The Ontario government has imposed a temporary ban on commercial evictions to help small business owners who are struggling to pay their rent amid the COVID-19 fallout.

Premier Doug Ford announced the moratorium on Monday, which applies to small businesses who qualify for the Canada Emergency Commercial Rent Assistance program (CECRA), where their revenues have dropped at least 70 per cent due to the pandemic.

The ban will take effect for evictions as of June 3 and last until Aug. 31.

The province's emergency commercial rent program launched in April to help small businesses pay their landlords, but it relied on the landlords themselves to apply, leaving the tenants hanging in the balance if they didn't.

Ontario now joins British Columbia, New Brunswick, and Nova Scotia as provinces that have implemented some form of a commercial eviction ban.

 

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CKL STUDENTS - THE NEW PLAN FOR POST-SECONDARY EDUCATION, STARTING THIS SUMMER. GET READY TO BE BACK IN CLASS. WHAT YOU NEED TO KNOW.......

The Ontario government today announced a plan for the gradual and safe resumption of in-person instruction at post-secondary institutions across the province for the summer term.

Starting in July 2020, limited in-person education and training may restart for students who were not able to graduate due to COVID-19 closures.

This first phase will allow institutions to reopen to provide in-person instruction to students in essential, frontline, and high labour market demand areas, such as nursing, personal support workers, engineering, and other critical professions.

Thousands of students across the province could benefit from this summer's reopening.

In September, all students will have the opportunity to attend postsecondary education through virtual learning, in-class instruction, or hybrid formats.

The limited summer reopening will help individual institutions prepare for the fall term by ensuring proper health and safety protocols are in place.

The province is developing a framework to be released to the sector in the coming days, which will provide guidance on the summer reopening and on health and safety measures.

Publicly assisted colleges and universities, Indigenous Institutes, private career colleges and other postsecondary education institutions may participate in this voluntary reopening. Institutions that choose to participate will be responsible for establishing their own plans for this limited reopening in accordance with public health advice and any ministry guidance.

The government will also begin working on a digital and academic modernization framework this summer.

Through this exercise, it will look at unlocking the potential of virtual learning, adapting postsecondary education and training to meet the needs of a rapidly changing job market and economy, increasing the accountability of postsecondary education, developing the necessary physical and digital infrastructure, and fully realizing the value of research, innovation, and intellectual property licensing in the domestic and global marketplace.

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CKL BUSINESSES - PHASE 2 IS UPON US - FIND YOUR SPECIFIC HEALTH AND SAFETY GUIDELINES HERE TO RE-OPEN. GRAB YOUR POSTERS AND OTHER RESOURCES HERE. FOLLOW THE GUIDELINES TO MAXIMIZE SAFETY AND MINIMIZE RISK.

The CKL is re-opening in Phase 2. 

However, Ontario has clearly indicated that openings may only take place if the proper health and safety measures are implemented.

To assist, the government has published specific health and safety re-opening guidelines for approximately 100 sectors, including restaurants and retail. 

All CKL businesses to find their specific health and safety guidelines and incorporate them strictly into the Phase 2 re-opening (and continue to abide by them for businesses that were permitted to open during Phase 1).  

The Ontario government has also indicated that it will provide an update on the re-openings of childcare services and summer camps in the near future. 

These health and safety resources will help CLK employers and workers better understand how to prevent the spread of COVID-19.

Sector guidelines contain recommendations and tips for employers on how to keep workers safe on the job.

Posters for both employers and workers also offer advice on preventative actions, including physical distancing and workplace sanitation.

Employers are encouraged to download the posters to print and post in the workplace.

As new sectors of the economy begin to reopen, additional COVID-19 workplace safety resources will be added.

Ontario also has general information on COVID-19 and workplace health and safety.

Here is the link to the information both employers and employees in the CKL should know and be familiar with for all re-opening in the CKL: 

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

 

 

 

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ALL LIMITATION PERIODS AND COURT STEPS IN ONTARIO SUSPENDED TO SEP. 11 - "DECOUPLED" FROM THE STATE OF EMERGENCY.

On Saturday, June 6, the Ontario government, after consultation with the Chief Medical Officer of Health,  extended all emergency orders currently in force under sub-section 7.0.2 (4) of the Emergency Management and Civil Protection Act until June 19, 2020.

"It is critical that we keep these emergency orders in place so we can continue to reopen the province gradually and safely," said Premier Doug Ford. "We are not out of the woods yet, and this deadly virus still poses a serious risk. We encourage businesses to begin preparing to reopen, so when the time comes, they will be able to protect employees, consumers and the general public."

In particular, due to COVID-19's unprecedented impact on the justice system, the province is extending the suspension of limitation periods and time periods in proceedings until September 11, 2020 under sub-section 7.1 of the Emergency Management and Civil Protection Act.

This is intended to ensure people will not experience legal consequences if the original time requirements of their case are not met while this order is in effect.

The province is reportedly working closely with the Courts to ensure operations can resume as soon as it is safely possible.

In this regard, Ontario's Attorney General’s notice to the legal community on June 5, 2020 reads: 

“First, one of the amendments is intended to enhance certainty as to the duration of the order by ‘decoupling’ the order from the state of emergency. Considering the uncertainty as to the nature and duration of the emergency, it is no longer appropriate for the duration of the order to be so closely tied to the duration of the emergency declaration. Going forward, the duration of the order will be based on all relevant factors and not just the state of emergency.

Second, in light of the concerns raised during my consultations, the suspension of limitation and procedural time periods will now continue up to and including September 11, 2020 (the maximum renewal period allowed for under the EMCPA)." 

Here is a link to the amended Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9:

https://www.ontario.ca/laws/statute/90e09

Anyone who suspects they may have COVID-19, or may have been exposed to the virus, is encouraged to visit an assessment centre to be tested.

To help stop the spread, people should practice physical distancing by staying at least two metres apart from anyone outside their immediate household, wash hands thoroughly and frequently, and, if physical distancing is a challenge, wear a face covering.

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EXTRA, EXTRA! CKL IS MOVING TO PHASE 2 ON FRIDAY. BARS AND RESTAURANTS. HAIR SALONS. GATHERINGS UP TO 10 PEOPLE. WHAT YOU NEED TO KNOW ABOUT TODAY'S ANNOUNCEMENT.

A significant list of businesses, including restaurants, hair salons and malls, will be allowed to reopen as of Friday in some parts of Ontario, except the Toronto-area and a few other regions, as the province enters Stage 2 of its restart phase through a regional approach.

The majority of Ontario's public health unit regions will move forward to Stage 2 on June 12, the province announced today.

Our Health Unit will move to Stage 2. 

The province said at the beginning of each week, the government will provide an update on the ongoing assessment of these regions, and whether they are ready to move into Stage 2 at the end of the week.

The province is also increasing social gathering rules, now allowing up to 10 people as of Friday. The increased social gathering rules apply to the entire province, regardless of whether the region is moving to Stage 2, but physical distancing rules still apply.

The province said the decision to move forward to Stage 2 was made in consultation Chief Medical Officer of Health and local health officials.

Ontario is also allowing places of worship to reopen, with attendance limited to 30 per cent capacity, with physical distancing rules in place.

These are the businesses that can reopen in regions entering Stage 2:

  •  Outdoor dine-in services at restaurants, bars and other establishments, including patios, curbside, parking lots and adjacent properties
  •  Select personal and personal care services with the proper health and safety measures in place, including tattoo parlours, barber shops, hair salons and beauty salons
  •  Shopping malls under existing restrictions, including food services reopening for take-out and outdoor dining only
  •  Tour and guide services, such as bike and walking, bus and boat tours, as well as tasting and tours for wineries, breweries and distilleries
  •  Water recreational facilities such as outdoor splash pads and wading pools, and all swimming pools
  •  Beach access and additional camping at Ontario Parks
  •  Camping at private campgrounds
  •  Outdoor-only recreational facilities and training for outdoor team sports, with limits to enable physical distancing
  •  Drive-in and drive-through venues for theatres, concerts, animal attractions and cultural appreciation, such as art installations
  •  Film and television production activities, with limits to enable physical distancing
  •  Weddings and funerals, with limits on social gatherings to 10 people.

These are the public health units moving to Stage 2:

  •  Algoma Public HealthBrant
  •  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

These are the public health units not moving to Stage 2:

  •  Durham Region Health Department
  •  Haldimand-Norfolk Health Unit
  •  Halton Region Public Health
  •  Hamilton Public Health Services
  •  Lambton Public Health
  •  Niagara Region Public Health
  •  Peel Public Health
  •  Toronto Public Health
  •  Windsor-Essex County Health Unit
  •  York Region Public Health
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CKL EMPLOYERS - USE ONTARIO'S UPDATED COVID-19 SELF-ASSESSMENT TOOL TO HELP SCREEN YOUR EMPLOYEES IN YOUR WORKPLACE - PROMOTE BETTER SAFETY; MINIMIZE LIABILITY. WHAT YOU NEED TO KNOW

Recently the Ontario government updated its COVID-19 SELF-ASSESSMENT TOOL.

The Tool delivers multiple questions designed to recommend what, if any, actions the self-assessing person should take or consider, including whether to attend work.

A link to the Tool is here:

https://covid-19.ontario.ca/self-assessment/

The Tool offers another way in which employers and employees can assess whether attending work is advisable, thereby clarifying uncertainty and confusion in the workplace.

The Tool also offers both employers and employees guidance on how to handle and impose policies and procedures regarding:

  • the potential symptoms of COVID-19, of which they should be aware;
  • determining which employees should be asked to leave the workplace and be directed to an assessment centre to get tested; and
  • determining which employees should self-isolate and work from home, if the nature of their work makes that possible.

Employers are permitted to request employees to use the Tool and follow the recommendations, as part of the overall health and safety plan in the workplace, particularly if there are reasonable grounds for suspecting an employee may be displaying any of the enlarged list of symptoms (described below), have the virus, or he or she may have been exposed primarily to the virus. 

Determining “At-risk group” and “close physical contact”:

The Tool identifies which individuals belong to an “at-risk group,” and defines “close physical contact.”

At-risk group:

Individuals who meet one of the criteria listed below are in an “at-risk group” for purposes of the Tool:

  • age 70 or older;
  • getting treatment that compromises their immune system (e.g., chemotherapy, medication for transplants, corticosteroids, TNF inhibitors);
  • having a condition that compromises their immune system (e.g., lupus, rheumatoid arthritis, other autoimmune disorder);
  • having a chronic health condition (e.g., diabetes, emphysema, asthma, heart condition); and
  • regularly going to a hospital or health care setting for a treatment (e.g., dialysis, surgery, cancer treatment).

Close physical contact:

The Tool defines “close physical contact” as:

  • being less than 2 metres away in the same room, workspace, or area for over 15 minutes; and
  • living in the same home

Four severe symptoms:

The Tool lists four potential severe symptoms of COVID-19:

  • severe difficulty breathing;
  • severe chest pain;
  • feeling confused or unsure of where you are; or
  • losing consciousness.

Seventeen additional symptoms:

The Tool also lists seventeen additional potential symptoms of COVID-19:

  • fever (feeling hot to the touch, a temperature of 37.8 degrees Celsius / 100 degrees Fahrenheit or higher);
  • chills;
  • cough that is new or worsening;
  • barking cough, making a whistling noise when breathing (croup);
  • shortness of breath;
  • sore throat;
  • difficulty swallowing;
  • runny nose (not related to other known causes or conditions);
  • stuffy or congested nose (not related to seasonal allergies or other known causes or conditions);
  • lost sense of taste or smell;
  • pink eye (conjunctivitis);
  • headache that is unusual or long-lasting;
  • digestive issues (nausea/vomiting, diarrhea, stomach pain);
  • muscle aches;
  • extreme tiredness that is unusual;
  • falling down often; and/or
  • for young children and infants: sluggishness or lack of appetite.

The Tool also addresses individuals who were in “close physical contact” with a person (High-Risk Individual) who:

  • tested positive for COVID-19;
  • is currently sick with a new cough, fever, having difficulty breathing; or
  • returned from outside of Canada in the last two weeks.

Finally, the Tool asks individuals if they have travelled outside of Canada in the last 14 days.

QUESTIONS AND ANSWERS FROM THE TOOL:

The Tool provides recommendations for the actions that those in each categories should consider and take.

For example:

Q. What actions does the Tool recommend for individuals who have one or more of the four Severe Symptoms?

A. Call 911 or go directly to their nearest emergency department, and take the self-assessment again (presumably when the symptom(s) subside, given their severity).

Q. What actions does the Tool recommend for individuals who have one or more of the 17 Symptoms?

A. Among other things: (1) Go to a COVID-19 assessment centre to get tested; (2) Stay at home (self-isolate); (3) Only leave home for critical reasons (such as going to an assessment centre); (4) Monitor their health for a full 14 days after their symptoms started; (5) Tell people with whom they were in close contact two days before their symptoms started to monitor their health and self-isolate; (6) Work from home, if possible; otherwise call their manager and occupational health and safety representative to let them know if they are experiencing symptoms or have been instructed to self-isolate, and discuss next steps to ensure they and their company are taking the right safety precautions; and (7) Visit their local emergency department if they begin to experience worsening symptoms.

Q. What actions does the Tool recommend for individuals who in the last 14 days were in “close physical contact” with a High Risk Individual?

A. Among other things: (1) Go to a COIVID-19 assessment centre to get tested; (2) Stay at home (self-isolate) for 14 days; (3) Only leave home for critical reasons such as going to an assessment centre; (3) Work from home, if possible; otherwise call their manager and occupational health and safety representative to let them know if they are experiencing symptoms or have been instructed to self-isolate, and discuss next steps to ensure that they and their company are taking the right safety precautions; and (4) Get re-tested at an assessment centre if they start feeling sick, come into close physical contact with someone who has symptoms, or feel like they need a test.

Q. What actions does the Tool recommend for individuals in the “at risk group”?

A. Among other things: (1) Stay at home (self-isolate); (2) Only leave their home for critical reasons (such as going to an assessment centre or for a medical emergency); (3) Work from home, if possible; otherwise, call their manager and occupational health and safety representative to let them know if they are experiencing symptoms or have been instructed to self-isolate, and discuss next steps to ensure they and their company are taking the right safety precautions; and (4) Visit an assessment centre if they begin to feel sick, come into close physical contact with someone who has symptoms, or feel like they need a test.

Q. What actions does the Tool recommend for individuals who travelled outside Canada in the last 14 days?

A. Among other things: (1) Stay at home (self-isolate) for 14 days; (2) Work from home, if possible; otherwise, call their manager and occupational health and safety representative to let them know if they are experiencing symptoms or have been instructed to self-isolate, and discuss next steps to ensure they and their company are taking the right safety precautions; and (3) Monitor their health and visit an assessment centre if they have symptoms or were told to do so by their local public health unit or their health care provider (doctor, primary care physician).

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MORE FINANCIAL SUPPORT FOR CKL RESIDENTS WITH DISABILITIES - READ ALL ABOUT TODAY'S ANNOUNCEMENT.

Today the federal Government announced more support to help Canadians with disabilities deal with extra expenses during the pandemic.

This support includes a special one-time, tax-free payment to individuals who are certificate holders of the Disability Tax Credit as of June 1, 2020, as follows:

  • $600 for Canadians with a valid Disability Tax Credit certificate.  

  • $300 for Canadians with a valid Disability Tax Credit certificate and who are eligible for the Old Age Security (OAS) pension.

  • $100 for Canadians with a valid Disability Tax Credit certificate and who are eligible for the OAS pension and the Guaranteed Income Supplement (GIS).

Combined with the special payments of $300 for Canadians who are eligible for the OAS pension and the additional $200 for those eligible for the GIS, all seniors with a valid Disability Tax Credit certificate will receive a total of $600 in special payments.

People who are eligible for this special payment will receive it automatically.

The Government of Canada recognizes that people with disabilities are also at higher risk of job loss during economic downturns.

To help Canadians with disabilities get and maintain good jobs so they can continue to support themselves and their families, the government will:

  • create a National Workplace Accessibility Stream through the Opportunities Fund for Persons with Disabilities. A new investment of $15 million in 2020-21 will provide community organizations with resources to improve workplace accessibility and access to jobs in response to COVID-19, including by helping employers set up accessible and effective work-from-home arrangements. This support will also cover expanding accessible online training opportunities and helping connect Canadians with disabilities working from home with employers.
  • invest $1.18 million in five new projects across the country through the Accessible Technology Program. With this funding, organizations will develop dynamic and affordable technology, such as accessible payment terminals for retailers and tools to make communication easier for Canadians with disabilities in the digital economy.

 

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

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

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

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

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

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

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

Health care

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

Eligible workplaces

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

Eligible workers

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

Long-term care

Eligible workplaces

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

Eligible workers

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

Retirement homes

Eligible workplaces

  • Licensed retirement homes

Eligible workers

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

Social services

Eligible workplaces

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

Eligible workers

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

Corrections

Eligible workplaces

  • Adult correctional facilities and youth justice facilities in Ontario

Eligible workers

  • Correctional officers
  • Youth services officers
  • Nurses
  • Healthcare staff
  • Social workers
  • Food service
  • Maintenance staff
  • Programming personnel
  • Administration personnel
  • Institutional liaison officers
  • Native Institutional Liaison Officers
  • TRILCOR personnel
  • Chaplains
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UPDATE ON THE COMMERCIAL RENT SUBSIDY FOR CKL SMALL BUSINESSES - APPLY NOW. WHAT YOU NEED TO KNOW.

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

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

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

Additional Information About CECRA: 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More Key Information About The CEBA: 

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

 

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

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

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

  • expanded to include eligibility for the following groups:

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

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

    • registered Canadian amateur athletic associations;

    • registered journalism organizations; and

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

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

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

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

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

These new changes will hopefully be legislated very soon. 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  • $500 weekly – maximum of 16 weeks

  • Retroactive to Mar. 15, 2020

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

  • Must be 15 and Canadian resident

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

  • 7, 4-week eligibility cycles or claiming periods

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

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

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

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

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

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

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

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

  • Not EI

  • Can collect CERB without affecting future EI benefit eligibility

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

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

 

Examples:

 

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

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

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

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

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

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

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

  • the duration of the leave

  • whether there is a pattern of absences

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

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

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

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

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

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

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

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

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

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

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

Stage 1 (in progress)

Stage 2

Stage 3

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

 

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

 

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

BUSINESSES GRADUALLY REOPENING IN PHASE ONE

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

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

  • lawn care and landscaping;

  • additional essential construction projects that include:

    • shipping and logistics;

    • broadband, telecommunications, and digital infrastructure;

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

    • municipal projects;

    • colleges and universities;

    • childcare centres;

    • schools; and

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

  • automatic and self-serve car washes;

  • auto dealerships, open by appointment only;

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

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

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

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

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

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

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

“STRICT” HEALTH AND SAFETY GUIDELINES

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

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

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

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

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

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

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

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

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

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

NEXT STEPS FOR ELIGIBLE BUSINESSES

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

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

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

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

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

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

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

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

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

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

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

  • compliance with health and safety protocols; and

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We should all raise our voices against stigma and discrimination

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

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

We are all in this together.

 

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

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

What you need to know about the CEWS: 

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

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

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

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

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

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

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

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

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

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

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

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

  • cashiers

  • chefs

  • dishwashers

  • administrators

  • drive-thru operators

  • maintenance staff

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

Protecting yourself and your co-workers:

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

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

  • Sanitize often, between each transaction if possible.

  • Wash or sanitize hands after making or receiving deliveries.

  • Sneeze and cough into your sleeve.

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

  • Avoid touching your eyes, nose or mouth.

  • Avoid contact with people who are sick.

  • Stay home if you are sick.

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

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

  • Wash your clothes as soon as you get home.

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

Physical distancing (two meters):

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

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

  • Minimize contact with customers.

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

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

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

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

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

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

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

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

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

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

  • Hold meetings in an outside or large space.

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

Workplace sanitation:

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

Here are some tips for employers to use:

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

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

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

  • Include handwashing before breaks and at shift changes.

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

  • Clean washroom facilities.

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

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

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

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

Adjust onsite and production schedules:

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

Here are some tips for employers to follow:

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

  • Consider job rotation.

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

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

  • Ensure sanitation of sites and workspaces.

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

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

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

Track your workforce:

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

Reporting illness:

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

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

  • Telehealth: 1-866-797-0000

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

Workers with COVID-19:

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

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

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

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

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

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

Getting information on infection prevention and control:

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

Share information:

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

Post your policies:

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

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

  • the sanitization of the workplace

  • how workers report illnesses

  • how to ensure physical distancing

  • how work will be scheduled

  • screening measures

Ministry of Labour, Training and Skills Development reporting requirements:

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

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

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

  • a trade union (if applicable)

 

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

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

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

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

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

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

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

Who should not use face coverings

Face coverings should not be placed on or used by:

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

How to properly use, clean and dispose of face coverings

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

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

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

When removing a face covering, you should:

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

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

If the face covering can be cleaned, you should:

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

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

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

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

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

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

SUGGESTED CONTROLS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

 

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

AVOIDING PENALTIES FOR UNLAWFULLY OPERATING:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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CKL BUSINESSES - TO REOPEN, CONSIDER TAKING YOUR EMPLOYEES' TEMPS (THERMAL TESTING) TO PROMOTE SAFETY, PROTECT PRIVACY AND MINIMIZE LIABILITY. WHAT YOU NEED TO KNOW.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

No one knows how we’ll emerge from this.

Will corporate culture change?

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

Will we travel at all for work in the future.

No one knows.

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

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

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

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

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

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

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

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

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

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

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

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

The new guidelines stress across all business sectors:

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

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

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

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

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

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

HEALTH AND SAFETY POSTERS

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

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

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

INSPECTION AND ENFORCEMENT

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

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

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CKL EMPLOYERS - CHEAT SHEET - WHAT IF AN EMPLOYEE REFUSES TO GO TO WORK? THE BASICS.

WORK REFUSALS BY EMPLOYEES

  • Must be a “danger” to returning to work
  • Employers must fulfill the statutory duty to take any reasonable steps to ensure health and safety in the workplace – More information here: http://wardlegal.ca/31587872329926
  • All governmental orders and health officials’ recommendations should be followed in the workplace – More information here: http://wardlegal.ca/31587872329932
  • Consider thermal testing for employees – must also be mindful of balancing employees’ privacy – More information here: http://wardlegal.ca/31586368607052
  • If a dispute, Ontario Ministry of Labour must be contacted – a binding decision will be made
  • Employees may qualify for a job-protected, unpaid leave of absence under the Employment Standard Act – More information here: http://wardlegal.ca/31587872329926
  • New Infectious disease leave of absence is broad and includes need to care for a dependent, like a child during school closures  
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CKL BUSINESSES AND LANDLORDS - THE NEW COMMERCIAL RENT DEAL - WHAT YOU NEED TO KNOW AS OF TODAY

City of Kawartha Lakes commercial tenants and landlords - what you need to know about the new, evolving commercial rent program available through the federal government: 

  • Reduces commercial rent by 75% if affected by COVID-19

  • Must pay less than$50,000 monthly rent to qualify

  • Must have stopped operating or suffered a 70% reduction in gross revenue

  • Available for April, May and June

  • Landlord must apply

  • Landlord pays 25% of monthly rent; tenant pays 25% to landlord; government gives loan to landlord for remaining 50%

  • Government loan is forgiven if landlord complies with program requirements

  • Must be a written “rent forgiveness agreement”, including a term for no eviction

  • Available to non-profits, etc.

  • More information here: http://wardlegal.ca/31586368607096

  • If landlord is unreasonable, inflexible (refused to apply to program), available options to defer or avoid commercial rent arrears are here: http://wardlegal.ca/31586368607098

 

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MENTAL HEALTH AND ADDICTION SERVICES IN CKL - NEW EMERGENCY ORDER - MORE FLEXIBILITY TO PROVIDE ASSISTANCE TO THOSE IN NEED

New Ontario emergency order affecting employers who provide mental health and addiction services (“Mental Health Agencies”), per Ontario’s Emergency Management and Civil Protection Act: 
 
Mental Health Agencies now have broad discretion and flexibility to take “any reasonably necessary measure to respond to, prevent and alleviate the outbreak” of COVID-19 and “to respond to consequences arising from” COVID-19, including: 
• redeploy staff within different locations, despite collective bargaining agreements; 
• change the assignment of work, which can include assigning non-bargaining unit employees or contractors to perform bargaining unit work; 
• change scheduling or shift assignments; 
• defer or cancel vacations, absences or other leaves (regardless of whether such vacations, absences or leaves are established by statute, regulation, agreement or otherwise); 
• employ extra staff (whether full time, part time, temporary, contractors, volunteers) to perform work, including bargaining unit work; 
• provide training or education as needed to staff and volunteers to “achieve the purposes of a redeployment plan”; 
• conduct “skills and experience inventories” to identify alternative roles for staff “in priority areas”; and 
• collect information from staff about their availability to provide services including their health conditions or exposure to COVID-19. 
These steps are permitted even if contrary to any collective bargaining agreements currently in effect. 
If there were a grievance by a union, it is deemed to be suspended during Ontario’s State of Emergency.   
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CKL - OUR NEW "REOPENING" PLAN - WHAT YOU NEED TO KNOW

April 27, 2020 – the Ontario Government announced it’s “Framework for Reopening our Province”.

  • no hard dates
  • no specific businesses or services identified
  • each stage is estimated to be two-to-four weeks, subject to virus containment

STAGE 1:

  • “select workplaces” that can immediately modify their operations to meet physical-distancing requirements, such as using curb-side pickup or delivery, will be allowed to open 
  • some outdoor spaces such as parks will be opened, and a greater number of people will be allowed to attend events such as funerals
  • hospitals will start rescheduling some surgeries and other postponed medical services 

STAGE 2:

- more workplaces allowed to open, including some service industries as well as retail and office workplaces 

- more outdoor spaces will open and larger public gatherings will be allowed

STAGE 3

- all workplaces will be reopened and restrictions on public gatherings will be relaxed further. However, large gatherings such as concerts and sporting events will “continue to be restricted for the foreseeable future" 

 

 

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CKL EMPLOYEES - A NEW TAX BREAK FOR YOU IF YOU BUY PERSONAL COMPUTER EQUIPMENT - NOT A TAXABLE BENEFIT TO YOU ANYMORE

April 22, 2020 - the Canada Revenue Agency (the “CRA”) announced it would allow special, favorable tax treatment to employees working from home during the COVID-19 pandemic. 

The CRA will accept that the reimbursement of an employee, for amounts spent on personal computer equipment to enable the employee to work from home, will not be a taxable benefit to the employee. This relief is to apply for amounts up to $500 and only in respect of amounts for which the employee provides receipts.

This departs from the standard-course taxation of home office expenses, according to which if an employee receives a reimbursement for home office equipment, it is characterized as a personal expense, primarily for the employee’s benefit, and therefore a taxable benefit.

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CKL BUSINESSES - WORKING AT HOME HAS SURGED - YOU'RE ALSO NOW ONLINE TO SURVIVE - SEVEN STEPS FOR PREPARING FOR AN IT FAILURE AND TO REDUCE YOUR LIABILITY RISKS

Due to the pandemic, the surge in work-from-home arrangements has caused strain and pressure on information technology (“IT”) providers.

Internet broadband providers, cloud-based businesses and virtual private network operators (“VPN”s) may be unable to keep pace with the new IT requirements for their clients’ businesses (collectively, “IT Providers”).

The result may be business interruption, additional time required to manage IT-related issues or other unanticipated resource allocation. 

To protect your business and prepare for this change in the IT world, you should:

[1]      Review your contract with your IT Providers:

  • is there a “force majeure” clause, or any clause addressing the interruption of IT services due to a health emergency or other reason?

For more information from us about non-performance clauses in contracts during COVID-19, go here: http://wardlegal.ca/the-virus---does-it-cancel-contracts-rental-agreements-separation-and-parenting-agreements-maybe---read-on

  • is there any clause about a material change in circumstances (i.e., adverse change) that may be triggered due to COVID-19?
  • is there any clause about whether temporarily not provide IT services will constitute a breach of your contract?
  • is there any clause in the contract that may limit or exclude the liability of the IT provider for non-performance?
  • is there any clause that imposes a time limit, or procedure by which, your claim must be made against the IT Provider, if any?
  • is there any clause requiring you to “mitigate” your damages and, in any event, should you discuss any available alternatives with the defaulting IT Provider, or arrange for another IT Provider to provide your services?

[2]      Check your commercial insurance policies:

  • do you have business interruption coverage?

For more information from us about this coverage, go here: http://wardlegal.ca/31582887996638

  • do you have emergency or public health coverage?
  • do you have any coverage that may be triggered due your IT Provider’s failure to provide services to you?
  • discuss with your broker whether such is available, if you do not have it, and consider amending your policy for that coverage
  • make sure you know what, if any, notice requirements you have vis-à-vis your insurance company if your IT Provider fails to perform, including if you intend to make a claim as a result

[3] Get your contingency plan ready:

If you may experience non-performance by your IT Provider, consider:

  • doing a full assessment of your business and its operations in terms of reliance on IT services;
  • evaluating the potential impact of non-performance by your IT Provider on your ability to continue your business; and
  • identify other options and have your contingency plan ready.

[4]      Get your workplace policy implemented for working-from-home (i.e., remote) arrangements:

  • implement your policy and have all employees acknowledge and agree, in writing;
  • consider incorporating:
    • productivity expectations;
    • action plan in the event of the failure of an IT Provider; and  
    • reporting system for any IT disruptions.

[5]      Get your date breach/privacy protocol workplace policy in place, as required by law

[6]      Monitor IT services carefully to detect any failure or breach and carefully record any incident

[7]      Carefully monitor e-fraud during the pandemic, which is rampant, including:

  • any requests for payment, especially any request to change payment or account details;
  • ensuring your employees speak personally with the third party to verify the payment arrangements;
  • check and double-check emails addresses and other contact information for third parties where funds are involved, including based on historical information;
  • always ask for confirmation via a new email (not a chain); and  
  • act quickly and decisively if fraud is detected.

 

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COVID-19- WORKING AT HOME - BEST PRACTICE AND TIPS TO BOTH EMPLOYERS AND EMPLOYEES

Virtually or remotely working (from home) can be very challenging to both employees and employers.

During this pandemic, typical work procedures and arrangements must be modified and be adaptive to the new reality.

Here is some guidance and tips to both employees working at home, and employers who now must lead them remotely.

IF YOU ARE WORKING REMOTELY OR AT HOME:

  • maintain structure;
  • plan your day, as if you are going to work (follow your morning routine, try to do the same things you would ordinarily do when starting your day, subject to your other responsibilities at home, like trying to parent children at home due to the school closures;  
  • make adjustments, if needed, to the hours you ordinarily would work in the office, because of child care and other responsibilities you may now have, because you are sharing equipment with a partner who is also working from home, or for any other reason;
  • keep your employer updated on your success with your arrangements for working remotely - they will appreciate you doing so; 
  • set up a designated space for working;
  • if you are struggling with the transition, focus on the benefits (i.e., how much commute time are you saving? Consider gas, transit, coffee, or parking savings, too);
  • use technology to stay present and connected - structure your daily schedule to accommodate communication with co-workers – find new ways to maintain connection, to help prevent feelings of isolation;
  • subject to the emergency orders and healthcare officials’ recommendations, take the time to get fresh air and exercise; even in times of self-isolation, a physically distanced walk can help maintain sanity and good health;
  • if you feel like you need more guidance when working from home, initiate regular check-ins with your manager to provide more structure;  
  • good, regular communication with your employer and co-workers is essential;
  • try not express your frustration or dismay by email or texts – talk through issues by ‘phone or virtually; and
  • give yourself a break, especially if you have children at home for whom you care – don’t be too hard on yourself; you’re only human!

IF YOU ARE MANAGING EMPLOYEES WORKING REMOTELY OR AT HOME:

Leading remotely can be challenging – some guidance to be successful:  

  • check in regularly with your employees – make them feel comfortable and connected;
  • schedule regular team meetings or virtual sessions, as well as one-on-ones, to maintain the flow of work and communication;
  • e-mail and instant messages can lack tone and create misunderstandings - lead by example by not jumping to assumptions and address potential conflict immediately;
  • even if you have known your employees for years, work to maintain strong relationships from a distance;
  • express appreciation for your team, acknowledge birthdays and other special events or occurrences;
  • encourage your employees maintain work-life balance and wellness – help them set boundaries to ensure the home is not an around-the-clock workplace;
  • set clear start and finish times for yourself, as well as breaks that would normally occur in the office;
  • let your employees know when you will be “out”, or taking a break;
  • take advantage of e-mail, instant messaging and virtual technology to facilitate different ways to communicate;
  • turn video on for one-on-ones and team meetings - help your team feel more present and engaged;
  • shift to a results-focused mindset, rather than a time-focused mindset by setting clear performance goals; and
  • facilitate more flexibility with schedules, and less anxiety for parents that may be having to split their time between managing children and work.

ONTARIO’S HUMAN RIGHTS (FOR EMPLOYEES):

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

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

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

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

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

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

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

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

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

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

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

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

Differential treatment related to this virus is not permissible.

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

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MINISTRY OF LABOUR DOING 'BLITZ' INSPECTIONS OF ESSENTIAL BUSINESSES - WORKERS ABLE TO EXPRESS CONCERNS ABOUT HEALTH AND SAFETY DURING INSPECTION

Ontario’s Occupational Health and Safety Act (the “OHSA”) statutorily imposes duties on everyone in the workplace, including a positive duty on employers to take every precaution reasonable in the circumstances to protect employees’ health and safety.

Businesses deemed “essential”, or “non-essential” businesses continuing to operate remotely, must ensure their health and safety policies and practices meet the legal requirements and are consistent with public health orders and recommendations.

The Ontario Government has also ordered that a person responsible for an essential workplace continuing to operate must ensure the business operates in accordance with all applicable laws, including the OHSA, and compliant with all the advice, recommendations and instructions of public health officials.

To this end, Ontario’s Ministry of Labour has been “blitzing” essential businesses for health and safety inspections across Ontario, including to enable essential employees to express and voice their concerns, if any. 

Ontario’s health and safety inspectors are responsible for enforcing compliance with health and safety legislation in provincially-regulated workplaces in Ontario and have broad regulatory powers to address non-compliance, such as issuing orders to those in the workplace, who may also potentially face charges for non-compliance with legislation, with substantial fines and even incarceration as potential outcomes in certain circumstances in the event of a conviction for an occupational health and safety related offence.

According to the Ministry, inspectors conducted over 5,000 workplace inspections during March of 2020.

The Ministry has said inspectors will work with employers and employees to resolve issues, and shut down businesses where warranted.

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CKL SENIORS AND VULNERABLE RESIDENTS - CHARITIES AND NON-PROFITS - NEW FEDERAL EMERGENCY FUNDING

Today more federal funding was announced, focusing on the vulnerable in the City of Kawartha Lakes, including our seniors. 

The government allocated $350 million to support vulnerable Canadians through charities and non-profit organizations that deliver essential services to those in need.

The newly-announced Emergency Community Support Fund will flow through national organizations that have the ability to get funds quickly to local organizations that serve vulnerable populations. It will support a variety of activities, such as:

  • Increasing volunteer-based home deliveries of groceries and medications
  • Providing transportation services, like accompanying or driving seniors or persons with disabilities to appointments
  • Scaling up help lines that provide information and support
  • Helping vulnerable Canadians access government benefits
  • Providing training, supplies, and other required supports to volunteers so they can continue to make their invaluable contributions to the COVID-19 response
  • Replacing in-person, one-on-one contact and social gatherings with virtual contact through phone calls, texts, teleconferences, or the Internet

 

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MINISTRY OF LABOUR DOING 'BLITZ' INSPECTIONS OF ESSENTIAL BUSINESSES - EMPLOYEES CAN VOICE CONCERNS ABOUT HEALTH AND SAFETY DURING INSPECTION

Ontario’s Occupational Health and Safety Act (the “OHSA”) statutorily imposes duties on everyone in the workplace, including a positive duty on employers to take every precaution reasonable in the circumstances to protect employees’ health and safety.

Businesses deemed “essential”, or “non-essential” businesses continuing to operate remotely, must ensure their health and safety policies and practices meet the legal requirements and are consistent with public health orders and recommendations.

The Ontario Government has also ordered that a person responsible for an essential workplace continuing to operate must ensure the business operates in accordance with all applicable laws, including the OHSA, and compliant with all the advice, recommendations and instructions of public health officials.

To this end, Ontario’s Ministry of Labour has been “blitzing” essential businesses for health and safety inspections across Ontario, including to enable essential employees to express and voice their concerns, if any. 

Ontario’s health and safety inspectors are responsible for enforcing compliance with health and safety legislation in provincially-regulated workplaces in Ontario and have broad regulatory powers to address non-compliance, such as issuing orders to those in the workplace, who may also potentially face charges for non-compliance with legislation, with substantial fines and even incarceration as potential outcomes in certain circumstances in the event of a conviction for an occupational health and safety related offence.

According to the Ministry, inspectors conducted over 5,000 workplace inspections during March of 2020.

The Ministry has said inspectors will work with employers and employees to resolve issues, and shut down businesses where warranted.

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

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

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

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

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

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

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

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

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

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

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

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

 

Sources:

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

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

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

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QUITTING A JOB - CAN I TAKE IT ALL BACK?

Quitting is a normal part of any employment relationship.  Any employee contemplating doing so will have hopefully made the right decision without feeling the sting of regret.   Regret is a common consideration as resignations will often prompt questions related to “are you sure about this?” from an employer, and it turns out the response to that question could be critical.

At law a resignation must be ‘clear and unequivocal’ in consideration of all the contextual factors surrounding the resignation.  This would make most employers feel confident that a resignation given in writing would be firm and enforceable.  But a recent case from the Ontario Court of Appeal draws some uncertainty into such a situation.

This case involved an employee who, upon learning that her employer would implement a new computer software, made a decision to take an early retirement rather than undergo the learning process of a new computer software.  She submitted her written notice of retirement to her manager and indicated that her primary reason for early retirement was the implementation of the new computer software. Furthermore, her manager expressed an opportunity for her to reconsider and rescind her retirement if she decided to do so.  Shortly thereafter the employee’s retirement was announced to the office. 

The employer’s plans eventually changed when, prior to the employee’s effective final day of work, the employer decided not to proceed with the implementation of a new computer software.  As a result the employee decided to rescind her notice of resignation and, despite the previous verbal acknowledgment that she could reconsider, the response from the employer was that her retirement would be final. 

The employee commenced an action for wrongful dismissal and, on an appeal to the Ontario Court of Appeal, was found to have not rendered a “clear and unequivocal” resignation.  The Court of Appeal made this finding based on the consideration that her resignation was clearly premised on the implementation of the new computer software as well the discussions between the employee and her manager in which she was given an opportunity to reconsider retirement.  The Court of Appeal concluded that the employee had rescinded her retirement notice and as a result was wrongfully terminated, with entitlement to damages.

This case serves as a valuable lesson for employers seeking to rely on a written resignation to determine that a resignation was ‘clear and unequivocal’.  Employer’s should take caution to investigate the contextual circumstances to a resignation before taking the position that a resignation is firm and enforceable. 

For assistance in disputed employment law matters, contact our office to book a consultation.

Citation: English v. Manulife Financial Corporation, 2019 ONCA 612.

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SAFETY ISSUE AT WORK? WHAT YOU NEED TO KNOW.

Safety at work is a tricky subject for both employers and workers.  As either an worker or an employer, everyone has likely heard the golden rule that ‘workers have a right to refuse unsafe work.’  This is a legal right that workers across Ontario have and it is important to understand how this right under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”) plays out in terms of the responsibilities and obligations of all parties involved.

While easy to understand in concept, one of the primary concerns in the workplace is how do workers effectively raise safety complaints to their employers and what obligations do employers have with respect to it? On a day-to-day level the answer is not so simple, when faced with tight deadlines and busy workloads workers and employers may often treat safety issues as secondary.       

If a worker is faced with an unsafe work situation then they should issue a safety complaint as soon as possible.  This triggers an obligation on the employer to respond to that complaint.  Workers have a right to seek their rights under the OHSA free from reprisal from their employer.  Reprisal can take multiple forms, for instance: being improperly reprimanded,  a worker losing shifts or  in some cases a termination of employment. 

Correspondingly, the employer should respond to safety issues or complaints in a diligent and reasonable manner without reprisal against the worker.  While there is no specifically prescribed form of response for employers under the OHSA, employers are required by law to implement written workplace policies in respect of workplace safety and workplace harassment. 

Employers who have had these obligations triggered should seek to adjudicate these safety concerns in a diligent and efficient manner according to their workplace policies.  Employers seeking to discount, or worse, take action against these complaints will do so at their peril.

This was the case in a recent case at the Ontario Labour Relations Board.  An employee raised complaints with his employer about a particular task assigned to him and subsequently was terminated in the following weeks.  The Labour Board in that case found that the employer had not met their obligations to respond to a complaint under the OHSA and that the termination was a negative consequence connected to the safety complaint made by the employee.  As a result, the Board awarded damages against the Employer for: loss of earnings, value of the job lost, and pain and suffering. 

Cases like these are preventable if all parties in the workplace understand their rights and obligations under the OHSA.

At a fundamental level, every workplace should have safety in mind.  Employees should receive a solid understanding of what workplace policies are in place as well as knowing the designated personnel to speak to when seeking to raise health and safety concerns. Likewise, it is important for employers to have an effective health and safety policy and framework in place to diligently and efficiently process with health and safety issues in the workplace. 

Workplace safety and workplace harassment policies are required by law in Ontario.

The Case:

William Joseph Thorogood v. North 44 Property Management, 2018 ON LRB 82724 (CanLII)

Need an effective workplace health and safety policy? Contact us - let's get started. 

 

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