BEFORE ANYBODY IS TERMINATED, REVIEW JASON'S AND CALVIN'S PRE-TERMINATION CHECKLIST!

PRE-TERMINATION CHECKLIST

Terminating an employment relationship should not be decided upon without planning and consideration of potential obligations (and liability).

Liability for reasonable notice, or pay in lieu of notice, must be considered. 

Below is a checklist that will be helpful for you to review before a decision to terminate is made.

This checklist will also help to identify what potential obligations may be owing by you to the terminated employee.   

1.  Review the employee's letter of employment or employment agreement. Is there an enforceable clause for minimum notice under the Employment Standards Act, 2000? Is there a valid “for cause” termination clause?

2.    Review the circumstances of the employee's hire. Was the employee recruited?

3.    Review significant changes in relation to the employee's position, role, salary, location or other material terms of employment to determine if the substratum of the employment relationship has been amended or varied materially and, therefore, whether the employment agreement potentially no longer reflects current terms.

4.   Determine the termination date and calculate, if possible, what is owing to the employee for all accrued remuneration to that date, including salary, vacation pay, commissions, incentives and bonuses, if any.

5.   Is the termination for “just cause,” due to misconduct? If so, are there adequate documentary records of past issues and warnings? Have the relevant individuals been interviewed, and is there a record of those interviews? Has the individual been given an opportunity to respond and answer to any issues and allegations? Has the higher standard of “wilful misconduct” under the Employment Standards Act, 2000 been triggered?

6.   Compile all relevant codes of conduct or policies applicable to the termination and ensure that you have complied with your own policies. In addition, where applicable, ensure that you have evidence that the employee was aware of the policies.

7.   If the termination is for performance reasons, is there enough documentation to establish: (a) lack of performance; (b) progressive warnings related to failure or refusal to maintain performance at reasonable and objective standards; and (c) the consequences of failing to do so?

8.   Are there related medical or disability issues that need to be considered and accommodated?

9.   Are there other human rights or statutorily protected employment rights that need to be addressed (for example, return to work following maternity, parental, WSIB or emergency leaves)?

10. If the termination is not for just cause, what is the period of notice of termination required by agreement or by statute, or implied by common law?

11. Will the notice period be worked by the employee in whole or in part? If payment is to be made in lieu of notice of termination, will remuneration be continued or paid out? Calculate the statutory termination and severance pay, if applicable. Calculate the offered common law notice pay in lieu (or salary continuance), if any. Verify whether the employee has any accrued, but unpaid, vacation pay up to the proposed date of termination, including pro-rated. 

12. Consider any statutory and contractual obligation(s) to continue benefits during notice periods and any conditions or exceptions to such obligations.

13. Will the termination offer be made subject to mitigation or not subject to mitigation by the departing employee?

14. Review the target employee’s specific compensation terms and entitlements in the twelve weeks prior to the proposed termination date, at least. Are there any specific requirements related to pensions, RRSPs, LTIPs, stock options, etc.?

15. Are there any outstanding loans or advances to the employee?

16.  Are there company supplies, documents, confidential information, computers, keys, fobs, credit cards, automobiles, equipment or other property to be returned by employee?

17.  Are there post-termination employee obligations, including with respect to solicitation of customers or non-competition?

18. Are there client or competitor lists that need to be identified with reference to non-competition provisions?

19. Determine the appropriate timing for the meeting to provide notice of termination. Consider who should attend at that meeting. Is any security necessary?

20.  Consider issues relating to employment references and/or providing a confirmation of employment letter. Who will be responsible for post-termination employment references?

21.  Did the employee sign a confidentiality agreement and, if so, should that be confirmed, including any specific duty or reference to any specific confidential information?

Careful review and planning must be undertaken before any employee is terminated. Alternatively, a costly mistake may be made. 

_________________________________

This is a summary only, intended to be for your general information only.

We strongly recommend that you contact us, or other qualified employment law counsel, for specific advice that may apply to, or be helpful for, any of the following:

  • termination of any employee, with or without cause;

  • suspension of any employee, with or without pay; 

  • workplace harassment/sexual harassment complaint; and 

  • workplace investigation of any kind,

before you initiate or take any steps, including to avoid a potentially costly misstep. 

© WARDS LAWYERSPC

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NEW ONT. LEGISLATION TO KEEP EMERGENCY ORDERS IN EFFECT AFTER DECLARATION OF EMERGENCY ENDS - WILL IT PASS?

The Ontario government has now announced proposed legislation that, if passed, would ensure certain emergency measures continue once the provincial declaration of emergency has ended. 

According to a government press release, Bill 195 Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, would:

• continue emergency orders in effect under the Emergency Management and Civil Protection Act ("EMCPA") under the new legislation for an initial 30 days;

• allow the Lieutenant Governor in Council to further extend these orders for up to 30 days at a time, as required;

• allow the Lieutenant Governor in Council to amend certain emergency orders continued under the EMCPA if the amendment relates to:

    • labour redeployment or workplace and management rules;

    • closure of places and spaces or regulation of how businesses and establishments can be open to provide goods or services in a safe manner;

    • compliance with public health advice; or

    • rules related to gatherings and organized public events;

• not permit new emergency orders to be introduced through the legislation; and

• allow emergency orders to be rescinded when safe to do so.

The ability to extend and amend orders under the new proposed legislation would be limited to 1 year, unless extended by the legislature.  The current declaration of emergency is in place until July 15, 2020, subject to further extension by the government.

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EVERYTHING YOU NEED TO KNOW ABOUT NEW MANDATORY NON-MEDICAL MASKS IN THE CKL, INCLUDING ENFORCEMENT, REPORTING 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.

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 a mask policy for the establishment;

  • communicate this new policy to staff and customers;

  • 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; and

  • post signs at all entrances reminding everyone to wear a mask.

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.

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

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OUR NEW ECONOMIC RECOVERY PLAN - ONT. GOV. DUMPS THE "HEARING OF NECESSITY" RED TAPE - GET READY TO ACCELERATE NEW INFRASTRUCTURE SPENDING IN THE CKL

The Government of Ontario has developed a made-in-Ontario plan for growth, renewal and economic recovery.

This plan includes measures that would make it easier and faster to build provincial highways, major transit infrastructure projects and quality, affordable housing, while ensuring there are meaningful opportunities for community consultation and input.

As part of the government's plan, the province is proposing to accelerate key provincial highway construction and priority transit projects by establishing an exemption from the Hearing of Necessity process.

Provincial Hearings of Necessity occur approximately 5-10 times per year on average for provincial highway projects.

Each hearing adds months of red tape and construction delays for critical provincial infrastructure, costing up to five months for transit projects and up to 12 months for provincial highway projects.

As part of this plan, the government would also enter into new commercial agreements with partners to build transit-oriented communities. This would allow for the development of more housing around transit in an integrated manner and put more job opportunities within the reach of more people.

The measures would also save taxpayers money by having the development industry make direct, significant contributions to the cost of building transit for the benefit of communities, all transit riders, and Ontario taxpayers.

These measures would allow the province to more quickly undertake important technical investigations and prepare construction sites, while ensuring meaningful consultation with landowners.

DID YOU ALSO KNOW

  • The province is investing $2.6 billion to expand and repair Ontario’s highways and bridges.

  • Ontario will continue to collaborate with the City of Toronto and York Region under the historic joint transit partnership agreements and Transit-Oriented Communities Memorandums of Understanding.

Additional Resources

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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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JASON'S TOP 10 FAST AND FURIOUS FACTS ABOUT THE CITY OF KAWARTHA LAKES

  1. “Kawartha” is an anglicization of the word Ka-wa-tha (from Ka-wa-tae-gum-maug or Gaa-waategamaag, a word coined in 1895 by aboriginal Martha Whetung of the Curve Lake First Nations - the word meant "land of reflections" in the Anishinaabe language, according to Whetung. The word was later changed by tourism promoters to Kawartha, meaning "bright waters and happy lands"

  2. the population is approximately 76,000

  3. there are approximately 40,000 private dwellings

  4. it is about 3,000 square kilometres in size

  5. currently the demographics are believed to be:

  • English: 45.2%

  • Canadian: 35.0%

  • Irish: 27.6%

  • Scottish: 20.3%

  • French: 10.4%

  • German: 9.4%

  • Dutch: 6.3%

  • First Nations: 2.9%

  • Welsh: 2.6%

  • Polish: 2.2%

  • Italian: 2.2%

  • Ukrainian: 2.2%

  • British Isles (other): 2.0%

  • Hungarian: 1.0%

  • White 95.5%

  • Native: 2.9%

  • Visible minority: 1.6%

  • 6.downtown Lindsay is known for having one of the widest downtown streets in Ontario, designed to be wide enough to accommodate the turning radius of a four-horse hitch

  • 7. the last Canadian National Railway (CN) train to run through City of Kawartha Lakes was on the Lindsay - Uxbridge line which ceased operation in 1991.

  • 8. the last passenger train to run through the City of Kawartha Lakes was No. 189 with Budd Car VIA 6104 from Havelock to Toronto Union Station over Canadian Pacific Railway (CP) lines on January 14, 1990

  • 9. it hosts the largest, outdoor kids’ road hockey tournament in Canada

  • 10.notable (famous) residents include:

  • Ruth Abernethy, sculptor, was born here in 1960

  • Carl CoulterCFL player, won the Grey Cup with the Hamilton Tiger-Cats in 1999.

  • Ron Ellis played for the Toronto Maple Leafs in the 1960s and 1970s, and was a member of Team Canada 1972 in the Summit Series.

  • Evangeline Lydia Emsley (b. 1885), nurse in World War I

  • Leslie M. Frost (September 20, 1895 – May 4, 1973), Premier of Ontario from 1949 to 1961. First elected in 1937 to the Ontario legislature representing Victoria-Haliburton, he was known as "The Laird of Lindsay." He combined small town values with progressive policies to lead the province through the economic boom of the 1950s.

  • Pearl Hart, outlaw

  • Simon Ward and Darryl James of The Strumbellas band, an internally-recognized band originating in Lindsay, ON

  • Sir Sam Hughes, Minister of Militia for Canada during World War I was born and raised in Lindsay.

  • Tyler Kyte, actor and musician, known for appearances in Instant Star and Popular Mechanics for Kids.

  • Joey Lawrence, commercial photographer behind the Twilight movie posters.

  • Fergus Patrick McEvay, former Catholic archbishop of Toronto.

  • Megan Park, actress best known for her role as Grace on Secret Life of the American Teenager

  • Joe Primeau played for the Toronto Maple Leafs in the 1930s.

  • Matthew Rose, swimmer, competed at the 2004 Olympic Games in Athens

  • Ernest Thompson Seton (1860–1946), artist, naturalist and writer of realistic wild animal stories. The Thompson family arrived in Lindsay in 1866 from South Shields, England. They resided in the home they built on Stony Creek until 1870, when Seton's father, Joseph Thompson, secured employment in Toronto as an accountant.

  • Jack Tunney, best known as an on-air authority figure for World Wrestling Entertainment in the 1990s made his second home in Lindsay, and died there in 2004.

  • Three out of the four members of The Kents, an alternative rock band, are from Lindsay

  • Nancy Sweetnam, Olympic medalist 

  • Other NHLers from the town include: Jeff BeukeboomDon MaloneyDave MaloneyJamie AllisonJoe JunkinDave Roche, and Tom Thornbury.

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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 TOP 10 CRAZIEST LAWS IN THE CITY OF KAWARTHA LAKES - THAT YOU DIDN'T EVEN KNOW YOU WERE BREAKING!

1.You could go to jail if you in any way melt, deface, alter or change any coin [Canadian Currency Act].   

2.Practicing witchcraft, sorcery and the dark arts is strictly illegal [Criminal Code, s. 365].

3.You cannot challenge anyone to a duel (swords or pistols) – period [Criminal Code, s. 71].

4.Possessing any comic book depicting any criminal act is highly illegal [Criminal Code, s. 164.1].

5.You cannot use too many coins to pay for your dinner or other purchase; specifically, a maximum of $25 (if using loonies) or a maximum of $5, if using nickels, etc. [Canadian Currency Act, 1985].

6.You could be jailed if you trick or mislead anyone to thinking something is Canadian maple syrup, when it is not [Maple Product Regulations, s. 3.1].

7.In fact, you can turn left at a red light if you're on a one-way street and you're about to turn onto another one-way street [Highway Traffic Act].

8.You can apologize to someone for something you said, without admitting any liability whatsoever for your statement or initial defamation of that person [Apology Act].

9. You cannot "enter or leave [an] aircraft during flight unless. . . (a) the person leaves for the purpose of making a parachute descent”. If the passenger is in possession of a parachute, however, making a mid-air jump from the plane can only be done with the permission of the pilot. So, if you jump out of a plane without a parachute and survive, you could go straight to jail, do not collect $200.

10.It’s totally illegal to scare or alarm the Queen [Criminal Code].

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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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DO NON-BIOLOGICAL/NON-ADOPTED CHILDREN GET CHILD SUPPORT FROM A NON-PARENT? YES, IF THEY ACTED LIKE A PARENT. WHAT YOU NEED TO KNOW.......

Generally, for a non-biological child, the Court will examine whether a person, for the purposes of having to pay support to that child, treated the person as his “child”, had a “settled intention” to do so and, in fact, had provided that person with financial support during the relationship.

Even after death, for example, under Ontario’s Succession Law Reform Act, the definition of “child” includes someone who the deceased individual had a “settled intention” to treat as their child.

Generally, the Court will consider, possibly among other things:

  • did the “parents” pool their income into a joint account?

  • did the “parents” pay the expenses for all children out of this same account?

  • did the child in question refer to the man as “daddy” or the woman as “mommy”?

  • did the “parents” refer to themselves as “mommy” and “daddy”?

  • did the “parents” share the task of disciplining the child?

  • did the child participate in the extended family in the same was as a biological child?

  • was there a change in surname?

  • did the “parent” express to the child, the family and the world, either implicitly or explicitly, that he or she is responsible as a parent to the child?

In a recent case, in which an alleged parent had died and a former girlfriend applied for “dependent’s relief” on behalf of the non-biological child, the Court remarked:

In my view, [the Deceased’s] support of [the Applicant] in these ways rises above affection and generosity. Despite the atypical family relationships between [the Deceased, the Applicant’s mother, the Deceased’s biological child, and the Applicant], [the Deceased’s] support of [the Applicant] demonstrates his settled intention to treat her as a member of his unconventional family. I find that [the Applicant] is therefore a dependant for the purposes of the SLRA.”

While this was a case involving a death of a “parent” who had demonstrated a “settled intention”, the same, or a similar result, would likely have been achieved if the case involving the payment of Ontario child support, rather than “dependent’s relief”. 

The Case:

Deleon v. Estate of Raymon DeRanney, 2020 ONSC 19 (CanLII)

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TODAY FEDS EXTENDED THE 14-DAY RULE FOR THOSE RETURNING TO CANADA (UNTIL AUG. 31)

Today the federal government extended the mandatory quarantine order until August 31 for the majority of people entering Canada. 

The federal Quarantine Act order was originally set to expire on Tuesday at midnight.

Travellers entering Canada will have to complete 14 days of self-isolation, whether they have COVID-19 symptoms or not.

The updated order also requires travellers to wear non-medical masks as they enter Canada or are making their way to the location where they will be isolating, by transit. The non-medical mask is not required in private vehicles.

Penalties for breaking the order include a fine of as much as $750,000 or six months in prison. If the person who disobeyed the order caused bodily harm or death by wilfully breaking the order—the fine could reach $1 million.

Those who are exempt from the order include people crossing the border often to ensure the flow of goods and services as well as people entering in order to provide essential services.

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WHAT IS COLLABORATIVE FAMILY LAW? AND WHY AM I SUPPOSED TO DO THAT INSTEAD OF FAMILY COURT?

Collaborative family law has grown in popularity over the last 25 years and has been embraced by family law practitioners to varying degrees. The collaborative family law movement began in the Western American states and was later adopted in British Columbia as one of the first provinces in Canada to embrace a shift in family law towards alternative forms of dispute resolution. Since that time, many lawyers across the country have embraced a transition to the collaborative process, perhaps in light of the fact that most family law cases settle before they reach the adjudication phase of litigation.

Collaborative family law took hold in Lindsay in 2012 when a group of local family law lawyers completed the necessary training and established the Kawartha Collaborative Practice group. Many family law lawyers are shifting towards seeking a method of resolving family matters in a more supportive way. This phenomenon, together with the growing barriers to accessing the judicial system, has led to a drastic increase in families choosing to embrace the collaborative process. The current legal system has been criticized for being ineffective and inflexible for adjudicating the many issues associated with family law matters. However, the recent Bill C-78, which introduces amendments to the Divorce Act, shows direct movement towards recognizing the collaborative process as a viable alternative dispute resolution process.

Indeed, settlement may be the most attractive option for litigants, as adjudication in the family court removes a great deal of control with respect to a family’s financial and structural future. Parties engaged in family law issues are typically dealing with a host of other emotional and financial uncertainties, which the traditional legal model is not able to address holistically. Additionally, many individuals involved in the family law system become frustrated with the expense, investment of time, and the lack of control they experience while litigating such personal matters.

In contrast, the collaborative process is focused on individual and family goals and interests and offers a method of achieving flexible yet legally binding solutions without pursuing costly and unpredictable litigation. Process goals include respectful communications, forthright exchange of documentation, confidentiality, and involvement of various collaborative professionals who strive for problem solving. The collaborative process is truly all encompassing and often includes various professionals trained in the collaborative approach, such as financial advisors, mental health professionals, social workers, and negotiation coaches/facilitators.

In the collaborative process, lawyers are specially trained to remain focused on settlement. The parties sign a Participation Agreement which governs their behavior throughout the process. The parties and their lawyers arrange “team” meetings which are structured to allow individuals to actively participate in creating solutions that are realistic for their family and which emphasize their main goals and interests. The main caveat of this approach is that it is essential that the parties are committed to resolution and are able to consider or appreciate the issues (to some extent) from each other's perspectives.

A primary critique of the collaborative process is the inevitability of an impasse between the parties resulting in either coercive bargaining or a failure of the process. However, there are several options available in the collaborative process to overcome such an impasse. The addition of neutral professionals to the collaborative process may decrease the chances of the parties reaching an impasse. Parties who are able to hear one concise position regarding their family’s financial matters directly from trained professionals may be less likely to fixate on one single financial position, and more likely to agree on a financial solution. Likewise, parties who have received the benefit of a social worker’s skillset may be less likely to escalate emotionally and dig in their heels when attempting to reach a settlement. In the case of a severe impasse that cannot be overcome by the collaborative team, one or two deadlocked issues may be referred to an outside mediator or arbitrator for recommendations or a final decision.

The rebuilding of a basic foundation of trust between parties is a central component to the collaborative process, even if this trust is limited in scope. Parties must learn how to work together, even if only with respect to limited situations, such as those relating to their children’s best interests. Once this trust building process begins – even if only in certain areas – impasses on other issues may be less likely to occur. Given the unique requirements of the collaborative process and the challenges associated with unique family dynamics, it may not be right for every family. However, unlike litigation, the collaborative process is flexible and ensures that both parties are able to be involved in the process of designing creative solutions that meet the unique needs and goals of their family. A meeting with a trained collaborative family lawyer will assist in determining whether the collaborative process is right for you and your family.

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NEW EMERGENCY ORDER - CKL RESTAURANTS CAN HAVE COVERED OUTDOOR SERVICE, IF MUNICIPALITY AGREES.

Ontario has issued a new emergency order and amending another under s.7.0.2 (4) of the Emergency Management and Civil Protection Act, which will allow municipalities to quickly pass temporary bylaws for the creation and extension of patios and allow covered outdoor dining areas to serve customers.

Under the Planning Act, the process to pass temporary use bylaws to create or extend a patio could take several weeks or more.

As restaurants are currently only permitted to host dine-in guests on outdoor patios under Stage 2.  

Municipalities would still be responsible for compliance activities and ensuring proper health and safety practices, like proper physical distancing.

The government also amended an emergency order to clarify that outdoor dining areas can open if they have a roof, canopy, tent, awning or other covering.

At least two full sides of the outdoor dining area must be open to the outdoors and must not be substantially blocked in any way. If the outdoor dining area has a retractable roof, the roof must be fully open and at least one full side must be open to the outdoors and must not be substantially blocked in any way.

On June 24, Ontario announced the extension of the Declaration of Emergency to July 15, allowing the province to continue to make or amend emergency orders under the Emergency Management and Civil Protection Act. The government continues to review all these emergency orders to determine when and if it is safe to amend or lift them as restrictions are eased and more places in the province reopen in a safe and measured way.

A full list of emergency orders can be found on the e-Laws website under the Emergency Management and Civil Protection Act and at Ontario.ca/alert.

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THE CKL ECONOMY IS RE-OPENING - BACK TO WORK - JASON'S AND CALVIN'S TOP 10 LEGAL TIPS FOR HIRING A NEW EMPLOYEE

As our local economy in the CKL gradually re-opens (hopefully), here are Jason's and Calvin's top 10 tips for hiring a new employee: 

[1]      SIGNED EMPLOYMENT AGREEMENT/OFFER:

Before the employee starts any work:

  • ensure you have the employee’s properly signed employment agreement or accepted offer of employment;

  • ensure the employment agreement/offer addresses everything necessary, including for termination (with and without cause), leaves of absence, police record check (if desired or mandatory), health and safety training, accessibility, job description (defining the position adequately), confidentiality, right to lay-off, rules for suspension, etc.;

  • consider if the employment agreement/offer should contain any non-competition and/or non-solicitation provisions to protect your business and assets in future; and     

  • provide a copy to the employee, before the employee starts in the position.

[2]    POLICE RECORD CHECK AND PROFESSIONAL REFERENCES:

  • obtain any required police record check (judicial record check, vulnerable sector check) and professional reference(s) prior to the employee starting any work for the position; and  

  • ensure the employment agreement/offer is conditional on those requirements and being satisfied with the results.  

[3]    HIRING AND RECRUITMENT:

  • ensure avoidance of discriminatory practices prohibited by the Ontario Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). 

[4]    BE CLEAR ABOUT WORK, ESPECIALLY REMOTELY (FROM HOME):

  • before the employee is permitted to work remotely, such as from home, ensure you have a workplace policy specifying eligibility, rules, requirements to do so (responsiveness, productivity, conduct, etc.), digital security and access, confidentiality and approval for overtime work, among other things; and

  • consider your own confidentiality requirements and ensure the employee is required to meet those obligations, including via online communications, using digital devices, etc.

[5]    BE SENSITIVE TO POTENTIAL DISABILITY ISSUES:

  • offer accessibility and accommodation during the recruitment and hiring process, if necessary; and 

  • request the employee to identify any potential accessibility or accommodation needs, if any, being very mindful of avoiding questions, or requesting information, prohibited by the Code. 

[6]    PROTECT CONFIDENTIALITY:

  • ensure you have the employee’s properly signed confidentiality acknowledgement, depending on the nature of your business and the importance of confidentiality to you and your clients, customers, employees, service providers, etc.   

[7]    PROTECT YOUR PROPRIETARY INTERESTS:

  • if you have proprietary intellectual property and/or information technology assets, ensure you have a proper acknowledgement signed by the employee to protect both your IT and IP assets in future, including digital assets.  

[8]    DISCLOSURE OF PERSONAL INFORMATION:

  • ensure the employee has properly signed a consent to the disclosure of the employee’s personal information (i.e., photographs, videos, etc.) for the purpose of marketing and/or promotion of your business, if desired, which also protects your third party marketing/promotion partners and agents.   

[9]    SET EXPECTATIONS:

  • provide the employee access to review your workplace policies before the employee signs the employment agreement/offer;

  • offer to review those with the employee and answer any questions; and

  • ensure the employee signs an acknowledgement verifying the employee’s review of your workplace policies (and any other key expectation for the employee in future) and agreement to adhere to those in future.

[10]  COMPLY WITH STATUTORY AND CRA RULES:

  • add the new employee to your CRA account for payroll source deductions, etc.

  • ensure the employee completes a TD-1 and a TD1ON Form;

  • complete the year-end T4A and other CRA requirements for the employee;

  • add the employee to your Workplace Safety and Insurance Board account, if applicable;

  • inform the employee where a copy of (Ontario’s) Occupational Health and Safety Act, R.S.O. 1993, c. O.1, as amended (the “OHSA”), is posted prominently in your workplace;

  • inform the employee where copies of both your heath and safety policy and your violence, harassment and sexual harassment prevention policy are posted prominently in your workplace, as required by the OHSA;  

  • give the employee a copy of the “Health & Safety at Work: Prevention Starts Here” poster, required by the OHSA, which must also be displayed prominently in your workplace at all times;

  • inform the employee of the names and locations of your workplace Joint Health and Safety Committee members, if applicable;

  • give the employee a copy of the “Employment Standards in Ontario” poster, published by the Ontario Ministry of Labour; and

  • arrange for the employee, including if he or she is a supervisor, to complete the mandatory health and safety awareness training required by the OHSA.

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EMPLOYEES ARE ENTITLED TO MAKE A COMPLAINT ABOUT SAFETY (COVID-19) CONDITIONS IN THE WORKPLACE, EVEN IF UNJUSTIFIED. ANTI-REPRISAL LAWS PROTECT THEM FROM TERMINATION FOR MAKING A SAFETY-RELATED COMPLAINT.

As we gradually re-open our CKL economy, employees may complain to the Ministry of Labour of Ontario about safety conditions in the workplace, justified or not. 

If so, they are entitled to do so and cannot be terminated if they do. 

Ontario's anti-reprisal laws protect employees for making safety-related complaints in the workplace, even if they are not justified.  

The Case: Le Safecross First Aid Limited, a recent decision of the Ontario Labour Relations Board

The Issue:

The employee made a complaint to his company about safety conditions in the workplace. He complained the conditions caused him to suffer ongoing knee pain and discomfort. 

Shortly after, he was terminated by the company.

The company argued there were other reasons for his termination, but ultimately the Board concluded that those reasons were unjustified and, therefore, the true reason must have been that the employee made a complaint about the safety conditions in the workplace.

The company alleged that it has made a final, written warning to the employee about his poor performance before he made the complaint. However, the employee disputed this and, because the company did not call sufficient evidence about this, the Board concluded that the final warning actually meant that the company, shortly before the termination, must have believed that a further warning, rather than termination, was justified. Therefore, the company, in trying to establish other reason(s) for termination other than the complaint, actually prejudiced its own case. An interesting feature about the case. 

Pursuant to the reprisal provisions of the Ontario Occupational Health and Safety Act, the Board ordered the reinstatement of the employee and that the company had to pay him his lost wages for the period between his termination and the reinstatement date.

The Lesson:

Employers should be careful when terminating an employee and consider all of the information on hand. If termination for cause is alleged, particularly, due consideration must be given to the justification for doing so. In this case, the employer's own strategy backfired. Employees are protected to make legitimate safety-related related complaints about the workplace.

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DOES MY BOSS NEED A GOOD REASON TO FIRE ME? WHAT ARE MY RIGHTS IF I AM FIRED?

Ultimately, employers do not need a reason to terminate an employee governed by Ontario law. They can do so “without cause” at any time, subject to the employee’s right to receive reasonable notice of termination, or pay in lieu of such notice. However, if an employer terminates an employee for cause, the employer may have no obligation to provide the employee with notice of termination or any pay in lieu thereof. Proving “cause” for termination is a high threshold in Ontario. The Courts routinely scrutinize an employer’s allegation of cause, often finding otherwise. Usually every case is unique and determined based on its own facts.  

Generally, an employee in Ontario is entitled to reasonable notice when his or her employer decides to terminate his or her employ without cause. Reasonable notice can be given either by ‘working’ notice (during which the employee remains employed) or by pay in lieu of reasonable notice. The amount of reasonable notice to which any employee may be entitled is case specific and depends on multiple factors, including age and level of responsibility.

Ontario employees terminated without cause are entitled minimum, statutory entitlements, including termination pay, under Ontario’s Employment Standards Act, 2000 (the “ESA”). Generally, most employees are entitled under the ESA to one week’s working notice or pay in lieu of working notice for each full year of service, up to a maximum of 8 weeks working notice or pay in lieu of working notice. This entitlement may vary depending on how many employees are terminated by an employer at any given time. In addition, employees employed for five years or more continuously may also be entitled to “severance pay” under the ESA – usually one week for each year of active service, up to a maximum number of weeks. 

These are the minimum, statutory rights only for Ontario employees. If there is no employment contract limiting an employee’s entitlement on termination without cause to the minimum standards under the ESA, or otherwise determining the entitlement, the terminated employee will be entitled to reasonable notice of termination of employment pursuant to the “common law”. Many lawyers refer to the ‘one month per year of service’ rule of thumb, but this is not the law. Rather, common law entitlement to reasonable notice is determined by several of factors, including: the nature of the employment, the level of responsibility, the length of the employment, the age of the employee, the availability of alternative employment and the circumstances surrounding the employer’s decision to terminate the relationship. Usually this is a very subjective assessment.

Perversely, in order to be awarded the full amount of any entitlement to pay in lieu of notice, an employee who is terminated is obliged by law to attempt to limit and/or “mitigate” his or her damages/losses from the termination by actively seeking alternative, comparable employment. Failure to do so may adversely impact the amount of common law reasonable notice to which the employee may be entitled. Only actual damages incurred are granted by the Court. Mitigated earnings during the notice period are usually deducted from the Court’s overall award. 

The situation for federally-regulated employees is different. Under the Canada Labour Code, most employees are entitled to two weeks’ notice of termination and, after twelve consecutive months of continuous employment, employees may also be entitled to severance pay equal to two days’ pay for each year of completed service, with a minimum benefit of five days wages.

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WHO'S IN YOUR CANADA DAY SOCIAL CIRCLE? DID YOU CHOOSE WISELY? YOUR CHEAT SHEET FOR CREATING YOUR SOCIAL CIRCLE - EVERYTHING YOU NEED TO KNOW. SIMPLE. FAST.

It's Canada Day 2020!

Welcome to the new normal of “social circles” in Ontario. 

Now we're told we should establish a family or social circle of no more than 10 people who can interact with one another without physical distancing. 

You can only be in 1 social circle.

Choose wisely.

You can hug non-household members, but only those in your social circle.

Everyone living in the same household is in a social circle.

People in the same social circle:

Why social circles are important

Close contact with people beyond your household is important to:

  • connect and be close with family and friends outside of your immediate household to reduce social isolation

  • support the mental health and wellbeing of Ontarians during the COVID-19 outbreak

  • allow some families to get additional support with child care, elder care and other personal needs

  • allow for more rapid contact tracing in the event of a case of COVID-19 in a social circle

We can trace and isolate COVID-19 quickly and effectively when you limit the number of people you come into close contact with.

Create a safe social circle

Follow these steps to create a safe circle.

Step 1: Start with your current circle: anyone you live with or who regularly comes into your household

Be sure to include anyone that would come into regular close contact with you and the people you live with.

This may be:

  • family members, including children

  • your roommates

  • another parent to your child(ren) that lives outside the home

  • a babysitter or caregiver

Considerations

If you add people outside of your household to your social circle, be sure to include anyone in their households as well. You may not see them often, but they would still be considered part of your current circle.

Remember that everyone in a household must be part of the same social circle.

Step 2: If under 10 people, you can add members to your social circle, including another household, family members or friends

As you add additional members, ask yourself:

  • Do they live with or come into regular close contact with anyone else? You may never see them, but they would still be considered part of your social circle.

  • What makes most sense for you or your household? That could include another household with similarly-aged children or family members that you want to spend more time with.

Considerations

If you live alone, you may want to start with family members or other close friends. People may, or may not, chose to participate in a social circle depending on their unique circumstance, and risk of developing complications from COVID-19, for example people:

  • over 70

  • with compromised immune systems

  • with underlying medical conditions

Remember that your social circle can include fewer than 10 people. It’s always best to start slow and safely add more members later.

Step 3: Get agreement from everyone that they will join the social circle

That means they agree to join only one circle, and physically distance with anyone outside the circle.

Essential workers can be part of a social circle, so long as the other members are aware of the risks and agree to them.

Step 4: Keep your social circle safe

To keep the people in your social circle safe:

  • continue to follow public health advice, including frequent hand washing and sneezing and coughing into a sleeve

  • continue to physically distance with anyone outside your circle by keeping two metres or six feet apart from them

If someone in your circle feels sick

They should immediately inform other members of the circle, self-isolate at home and not come into close contact with anyone, including other members of the circle.

They should also get tested.

Find an assessment centre to get tested for COVID-19.

Everyone else in the circle should closely monitor themselves for symptoms of COVID-19. If you believe you have been exposed to COVID-19 you should also be tested.

Step 5: Be true to your social circle

No one should be part of more than one circle.

 

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ONTARIO'S NEW "SHOP LOCALLY" CAMPAIGN ANNOUNCED TODAY. MORE SUPPORT TO CKL SMALL BUSINESSES. WHAT YOU NEED TO KNOW.

This is International Small Business. 

The Ontario government has now launched the "Shop Local! Shop Safe! Shop with Confidence!" campaign, encouraging Ontarians to support their local small businesses and to shop safely while doing so.

The province's campaign asks for mayors, local leaders and groups to support our small businesses by committing on social media to "Shop Local, Shop Safe, Shop with Confidence," while highlighting the best practices put in place by businesses to help keep shoppers safe while ensuring that the reopening of Ontario continues to be a success.

For example, the principles of the People Outside Safely Together (POST) Promise encourage small businesses to strictly follow health guidelines and reopen with appropriate measures in place, so consumers can shop safely and with confidence, including:

  • Washing and sanitizing hands

  • Maintaining physical distancing

  • Staying home if unwell

  • Practicing respiratory etiquette

  • Cleaning and disinfecting regularly

The province, in partnership with various health and safety organizations, has also released sector-specific guidelines in response to the COVID-19 outbreak. These documents help workplaces better understand their responsibilities and includes best practices they can use to help them comply with their legal obligation to protect the health and safety of workers.

DID YOU ALSO KNOW

  • Ontario is also providing significant support to small businesses, including an investment of $150 million in rural broadband which will help businesses access a greater pool of customers as well as significantly expanding the Digital Main Street platform to help small businesses create and enhance their online presence, helping them to adapt and meet the challenges of today. The province has also implemented a ban on commercial evictions to help small businesses that have been significantly impacted by restrictions due to COVID-19.

  • The Board of Directors of the POST Promise Corporation is comprised of senior level business leaders and public health experts from organizations such as: The Business Council of Canada, Retail Council of Canada, Canadian Global Cities Council, Canadian Federation of Independent Business, Building Owners and Managers Association of Canada, Restaurants Canada, McCarthy Tetrault LLP, The University of Toronto, Salt XC, and Medcan.

  • The Ontario Government reduced the small business Corporate Income Tax rate by 8.7 percent starting January 1, 2020. This will deliver up to $1,500 in annual savings to more than 275,000 businesses.

  • Ontario’s Small Business Success Strategy, launched prior to COVID-19, identified the need for small businesses across the province to build or enhance their online presence to remain competitive and expand their markets. COVID-19 has further reinforced the need for Ontario small businesses to embrace digital tools, including having online storefronts and expanding them. The Strategy also seeks to promote entrepreneurship in all of Ontario’s diverse communities.

  • To further support small businesses with physical storefronts impacted by COVID-19 restrictions, Ontario has implemented a Temporary Ban on Commercial Evictions

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NON-MEDICAL MASKS. SERIOUSLY, WHAT'S THE DEAL HERE? DO I HAVE TO BY LAW? WHEN? WHERE? YOUR QUESTIONS ANSWERED.

Do not use a medical (surgical) mask, such as an N95 – rather, make those available to frontline healthcare workers. If you have any, consider donating them to your local hospital, or other healthcare service.

At a minimum, use a non-medical (cloth) mask when you attend any public or private indoor place, like a grocery store, office, pharmacy or retail store, if there is any risk that you may be unable to maintain a minimum distance of six feet from any other person, including through no fault of your own and despite your best efforts.

Many health officials in Ontario and federally are now recommending we wear a non-medical mask anytime we visit an indoor space, like a business or public facility, even if there is no risk to maintaining physical distancing.

Wearing a non-medical mask is not legally required in Ontario, but that is likely to change very soon, at least for when we attend indoor private and public places.  

Remember that non-medical masks do you protect you from contracting the virus from another; rather, they minimize the opportunity for you to transmit it to another person, particularly if you are asymptomatic.

Do not share your non-medical mask with anyone else, like family members.

Contact your local health unit to obtain advice and instructions on how to prepare your own non-medical mask – there are video tutorials available, including on YouTube and other sources, but check with your health unit for the best source.

If you live in the CKL, here is a link about using your non-medical mask by our health unit: https://www.hkpr.on.ca/2020/04/20/covid-19-and-mask-use/

Follow the best practices published by your local health unit for using a non-medical mask, including cleaning methods. 

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KEY TIPS/STRATEGIES TO BUSINESS OWNERS AND MANAGERS TO RECOVER AND EMERGE MORE SUCCESSFUL THAN EVER IN PHASE 2 AND BEYOND

During our Phase 2 recovery in the CKL, business owners and managers face new and unprecedented challenges.  

Here are some tips to business operators for re-emerging to be more successful than ever: 

1. Shift focus from inputs to outcomes.

Before the pandemic, we focused on inputs: the conditions we thought would generate the desired results. Now, with most work conditions turned upside-down, leaders need to focus on outcomes.

Be clear about the outcomes, precise about the timeline, and specific about who is accountable for what – but be flexible about how things get done within that basic framework.

2. Trust your team.

We used to think people wouldn’t get their work done if they didn’t come into the office, weren’t supervised, and couldn’t meet face-to-face. We now know those assumptions aren’t necessary or helpful – people can work independently. They get work done because they choose to.

Remote leadership means respecting, and relying on, the autonomy and judgment of your team. Trust them – if you let your people decide to succeed, they will.

3. Stay motivated.

This period has been characterized by change and upheaval, it may have also seemed monotonous. To prevent fatigue inspire your team to shake things up.

Encourage experimentation with new ways of thinking and working. Adjust your daily routine. Try new set-ups that suit your lifestyle. Take a call on the treadmill or knit during a meeting. Take your laptop on the balcony or in the backyard. Even a small change can keep you and your team motivated.

4. Let your guard down.

The pandemic has brought the workplace into our homes and personal lives. While it may seem like your “worlds” are colliding, take this as an opportunity to learn about your colleagues and to embrace the diversity of your team. This can mean asking colleagues about their daily routine, their family, their home office, their hobbies and interests, or simply what they are watching on Netflix.

At the same time, the pandemic has affected everyone differently, and some people may be finding the adjustment harder than others. Keep that in mind when communicating with your team. Be open to personal connection, but mindful about privacy.

5. Be curious.

Working remotely can present unique challenges to your team members based on their personalities and communication styles. Some will assert themselves naturally while others may find it more difficult to do so. Introverts may find it easier to adjust while extroverts may struggle. Take care to engage your team directly in their preferred styles.

When leading a video meeting, welcome each person by name. Do this even with larger groups so that people will turn their cameras on. They will feel included and appreciated, which will enhance their contributions.

Cut the agenda in half and ask more questions. Leave room for “virtual white space”. Even if pauses can be uncomfortable, they enable ideas to emerge and create space for different views.

6. Raise the bar.

People change more easily than expected. The pandemic has shown us that we are adaptable and can be productive despite challenging circumstances. Drive momentum by leaning into change. Develop an innovation task force or identify change initiatives that may be accelerated. Organizational capacity for change has increased. Now is the time to raise the bar on what’s possible for you and your team.

Credit: 

McCarthy Tetrault LLP, Daniel Siracusa, published on Lexology.com on June 29, 2020

 

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COVID CRACKDOWN ON TOWING INDUSTRY - ONTARIO GOV. TASK FORCE ANNOUNCED TODAY

The Ontario government is establishing a task force to improve provincial oversight of the towing industry. The task force will help develop a regulatory model that will increase safety and enforcement, clarify protections for consumers, improve industry standards and consider tougher penalties for violators.

The government is taking this action in response to concerns raised about incidents of criminal activity and violence in the towing industry.

The task force will review a number of topics related to the towing industry, which could include provincial oversight of safety, consumer protection, improved industry standards, training and background checks.

As part of the review, the task force may consider opportunities for increased protections for consumers against the first-to-scene unethical business practices, insurance savings through a crackdown on insurance fraud rings or improved consumer choice for payments and repairs. The province is also reviewing ways to improve our transportation system by clearing accidents more quickly which would minimize lane reductions and reduce congestion on our highways.

Membership of the task force will include representatives from the Ministry of Transportation, the Ministry of the Solicitor General, the Ministry of Government and Consumer Services, the Ministry of Municipal Affairs and Housing, the Ministry of Labour, Training and Skills Development, the Ministry of Finance and the Ontario Provincial Police. Once the task force has developed proposals for discussion and comment, it will be consulting with industry, municipalities, and public safety experts.

DID YOU KNOW

  • There are approximately 1,600 tow truck companies registered in the Ministry of Transportation’s Commercial Vehicle Operator’s Registration (CVOR) program. A valid CVOR certificate is required to operate a tow truck.

  • The Consumer Protection Act contains specific tow and storage services rules to help protect consumers who need a tow or roadside assistance in Ontario. The Ontario government is currently reviewing the Act and consumers can provide input through a survey until July 17, 2020, on a number of issues, including towing.

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RECALLED HAND SANITIZERS - TOXIC - AVOID THESE PRODUCTS.

The B.C. Centre for Disease Control is advising people not to use hand sanitizer products manufactured by Eskbiochem SA de CV in Mexico, due to the potential presence of methanol (wood alcohol), a substance that is toxic if ingested. 

Methanol, when absorbed through the skin or ingested can cause nausea, vomiting, headache, blurred vision, permanent blindness, seizures, coma, and is potentially life threatening, according to the BCCDC.

People most at risk of ingesting hand sanitizer include children, people with dementia, and people using it as a substitute for alcohol.

The warning follows a similar advisory from the U.S. Food and Drug Administration last week about the possible presence of methanol in products from the same company. 

The list of recalled products by the FDA are:

  • All-Clean Hand Sanitizer (NDC: 74589-002-01)

  • Esk Biochem Hand Sanitizer (NDC: 74589-007-01)

  • CleanCare NoGerm Advanced Hand Sanitizer 75% Alcohol (NDC: 74589-008-04)

  • Lavar 70 Gel Hand Sanitizer (NDC: 74589-006-01)

  • The Good Gel Antibacterial Gel Hand Sanitizer (NDC: 74589-010-10)

  • CleanCare NoGerm Advanced Hand Sanitizer 80% Alcohol (NDC: 74589-005-03)

  • CleanCare NoGerm Advanced Hand Sanitizer 75% Alcohol (NDC: 74589-009-01)

  • CleanCare NoGerm Advanced Hand Sanitizer 80% Alcohol (NDC: 74589-003-01)

  • Saniderm Advanced Hand Sanitizer (NDC: 74589-001-01)

Consumers are advised to dispose of the product immediately in hazardous waste containers, rather than flushing or pouring the product down the drain.

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WHAT DO I DO IF THERE IS A COVID-19 POSITIVE CASE IN MY WORKPLACE? TAKE THESE STEPS........

Several U.S. States are introducing renewed lock-down measures. Kingston recently had an 18-case issue at a nail salon, resulting in 700 contact traces. 

What do you do if you have a COVID-19 in your workplace? 

Answers: 

Isolate the worker promptly

If the worker is in the workplace, isolate the worker (hopefully at a prearranged medical room or location). If available a mask should be provided to the worker immediately for them to wear, and for any other workers providing direct care (e.g. first aid). Other workers who may have been in close contact with the ill worker should also be immediately isolated.

Get public health and healthcare advice

In most Canadian jurisdictions, local public health authorities recommend /require that they be contacted when a worker reports being ill with symptoms and indicators of COVID-19. The worker’s own physician should be contacted by the worker, or if the situation appears to be an emergency, medical assistance should be sought promptly. Public health guidance may assist the employer in determining whether it is appropriate to send other workers home, which persons to notify, or even whether to close the workplace temporarily, especially if it appears multiple workers/members of the public/visitors have been impacted.

Public health may also require or recommend contact tracing in relation to those who have had ‘close contact’ or other contact with the worker. Before any potential COVID-19 outbreak in the workplace, employers should be maintaining a log of all workers and visitors in the workplace on a given day. This will allow for immediate and accurate contact tracing.

Testing and test results

Testing for COVID-19 should be requested to confirm any suspected case of the virus. Symptoms similar to COVID-19 can sometimes be the result of a bad allergic reaction or a serious case of other flu viruses, which do not have the same potential significant consequences. Transport of the worker to obtain medical assistance or to a testing facility should be provided, if possible. It should be emphasised to the worker/testing facility, that testing results are required promptly. The earlier testing results are provided to employers, the faster they can act with certainty to help control/minimise the spread of the virus. Communications, discussed below, should refer to testing being done, timing of expected results, and communications being updated as required, if it turns out a test result for COVID-19 is negative.

Communication

Whether a case of infection is suspected, or if it has been confirmed, a general principle of good workplace and crisis management is communication. Management or human resources/ health and safety should communicate known details promptly. The purpose and scope of communication will depend on the circumstances: to alert customers or clients that a suspected case has been identified and they are being informed at the earliest possible stage; to alert affected workers or visitors/others that they may have been in the workplace or in close contact with the positive case and they may wish to be tested, for example.

Any communication need not, and should not, provide the name of the worker being tested/ who is confirmed positive, or names of others being sent home from the workplace. General principles of privacy law and specific Canadian privacy statutes prevent disclosure of specific health information. It is best to communicate privately to those individuals who may have had close contact with the affected worker, and refer generally to the areas in which the worker may have worked or have been present. Reasonable information, to prevent harm, can be disclosed. The extent of disclosure should be sufficient to inform those who may have been exposed, but also protect the privacy of the worker who has or potentially has an illness. These obligations must be carefully balanced.

Employers should be aware that it is the policy of many provincial health officers to publicly identify the location of any COVID-19 outbreak, which includes identifying the name and physical location of the workplace. Even if an employer has taken all appropriate measures to limit the transmission of COVID-19 in the workplace, they should be prepared for negative media, customer and public attention due to the stigma associated with a COVID-19 outbreak. Those employers with internal or external public relations experts should plan to utilize them.

Prompt communication to workers and affected parties, provision of honest and direct information, and communication respecting immediate measures being taken, can significantly lessen the negative publicity and damage to reputation associated with a publicized case or outbreak.

Reporting to OHS/workers compensation

Generally, across Canada, no requirement exists to report a ‘positive COVID-19 test’ to OHS or workers compensation authorities, unless it is clear that the infection arose from an exposure at the workplace.

If the infection clearly or arguably arose from an exposure at the workplace, it may be reportable. For example, if there have been other positive cases, or if a significant COVID-19 outbreak has occurred at the workplace, it will be difficult for the employer to suggest the case did not arise out of the workplace. In many jurisdictions health care or illness arising from an exposure at the workplace must be reported to Workers Compensation, and once that has been done, it must also be reported to OHS authorities, joint health and safety committee, trade union.

OHS and Workers’ Compensation reporting obligations in the applicable jurisdiction should be consulted carefully for reporting obligations. Proposed amendments to Workers’ Compensation legislation to create a presumption of workplace infection in certain industries and circumstances have been made, in BC and Ontario, but are not yet law.

In addition, in some jurisdictions, such as British Columbia, an employer is required to have developed and implemented a COVID-19 Safety Plan before reopening. In the event of a COVID-19 outbreak in the workplace, regulators will likely be asking for copies of that plan and evidence its requirements were actually implemented.

Should we shut down all or part of the workplace?

Shutting down all or part of the workplace ought to be considered carefully, depending on all of the circumstances. A decision to shut down a workplace pending confirmation of a positive test, may be premature, but in our view should be the subject of advice from local public health authorities. Upon confirmation of a positive case, an assessment of the number and frequency of contacts, and other circumstances should occur promptly. Amongst questions to be asked:

  • When did the worker last attend at the workplace? (If there has been some significant passage of time since the last shift or the worker regularly works at home, the timing of contact with workers or objects in the workplace may be determinative);

  • Does the worker work in a crew? (If so, all crew members may have been exposed and may need to be sent home to self-isolate along with the ill worker);

  • Does the worker and other workers in close proximity to him or her work in specific area separate from others in the workplace? (It may be possible to identify that group and send them home along with the ill worker to self isolate);

  • Is it possible an entire worksite, such as an office, has had exposure due to working closely together and contact with the ill worker with physical work product or objects?

  • What engineering, administrative and cleaning controls are in place at the workplace that may have reduced the risk of transmission to other workers?

  • Was the worker wearing protective equipment as recommended or required? (This bears on the assessment of potential for exposure);

  • Can any area identified as having been accessed by the worker be cleaned promptly and thoroughly to permit continued operations?

OHS regulators may attend at the workplace (physically or by phone), and make the decision on shut down for you. OHS may attend after any report of a workplace-related exposure, work refusal, or due to a worker complaint.

Communication with OHS regulators respecting the employer’s assessment of all the above factors, as well as providing relevant written pandemic processes, and protective measures being taken, is important in determining whether a stop work order may be issued, and a shutdown is necessary, pending additional measures.

While it is hoped that most employers and managers will not receive a call reporting a positive case of COVID-19, the above steps can guide a successful employer response, to minimise business, reputational and health impacts, to the extent possible.

Credit: 

By Cheryl A. Edwards, Natasha Jategaonkar, Deanah I. Shelly and Paul D. McLean. Firm: Mathews, Dinsdale & Clark LLP, published on Lexology.com on June 29, 2020 

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RETURNING TO CANADA? 14-DAY STRICT QUARANTINE WILL BE EXTENDED TOMORROW - POLICE ENFORCEMENT INCREASED. WHAT YOU NEED TO KNOW.......

The federal government will soon extend the Quarantine Act restrictions requiring out-of-Canada travellers to isolate for 14 days upon their arrival in Canada. 

This requirement would otherwise expire tomorrow.  

Up to this time, all returning Canadians were told they had to self-isolate for 14 days and that they were prohibited from stopping anywhere along the way home.

Once isolated, the traveller was required to report the development of any COVID-19 symptoms to public health officials.

A person who normally lives with an elderly person or someone with a compromised immune system, for example, would have to quarantine elsewhere.

More recently, Canadians returning home from abroad who didn't have credible plans to self-isolate were required to stay at a quarantine facility.  

In addition, travellers returning from abroad  were required to wear non-medical masks or face coverings before they could proceed to their final destinations.

If a traveller develops symptoms during a quarantine period, or is exposed to someone who does, the 14 days of isolation begins again.

If the Canada Border Services Agency suspects that a returning traveller is not going to comply with the rules, it can alert the Public Health Agency of Canada, which can then flag the RCMP's national operations centre. The RCMP has been playing a coordinating role with local police during the pandemic.

Maximum penalties for failing to comply with the Quarantine Act include a fine of up to $750,000 and/or imprisonment for six months. If someone jeopardizes another's life while wilfully or recklessly contravening the act, the penalties are even greater: $1 million or three years in prison, or both.

The Canada/U.S. border has also been closed, at least until July 21, except for essential (commercial) travel.

 

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EMERGENCY ORDERS EXTENDED TODAY TO JULY 10 - RULES FOR INDOOR SPORTS FACILITIES RELAXED.

The Ontario government has extended all emergency orders currently in force that were made under s.7.0.2 (4) of the Emergency Management and Civil Protection Act until July 10, 2020, while removing restrictions that were limiting access to certain sport training facilities.

The extension of the emergency orders will allow key measures needed in the fight against COVID-19 to continue, including allowing frontline health care providers and public health units to redeploy staff where they are needed most, while providing the government with the tools it needs to successfully steer the province through the next stage of reopening and beyond.

In addition, the government has removed certain restrictions for Stage 2 indoor sports and recreational fitness activities facilities.

This will enable the facilities to be used by more businesses and organizations to train amateur or professional athletes, or to run certain non-contact amateur or professional athletic competitions.

In all cases, facility owners would only be able to permit activities to occur in a way that meets public health requirements.

These changes will also enable many sports and recreational organizations around the province to again offer  sport training programming, helping more people return to sport in Ontario.

On June 24, Ontario announced the extension of the Declaration of Emergency to July 15, allowing the province to continue to make or amend emergency orders under the Emergency Management and Civil Protection Act. The government continues to review all these emergency orders to determine when and if it is safe to amend or lift them as restrictions are eased and more places in the province reopen in a safe and measured way.

A full list of emergency orders can be found on the e-Laws website under the Emergency Management and Civil Protection Act and at Ontario.ca/alert.

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CLK SENIORS - ANOTHER $14 M FINANCIAL SUPPORT FOR PROGRAMS SUPPORTING YOUR WELL-BEING. WHAT YOU NEED TO KNOW TODAY.......

The Ontario government is providing up to $4 million for the Seniors Community Grant Program, a significant increase over last year.

This funding will help non-profit organizations, local services boards, or Indigenous groups develop programs for seniors that focus on combatting social isolation, promoting seniors' safety and well-being, improving financial security and making communities age-friendly.

This year's grants will range from $1,000 to $100,000 and will fund projects that will:

  • Help older individuals and couples receive the support they need in their community;

  • Ensure seniors are less at risk for neglect, abuse and fraud, and that their rights and dignity are protected​;

  • Ensure more older adults are connected and engaged, reducing social isolation;​​ and,

  • Provide more opportunities for older adults in employment and volunteering, achieving greater financial security and engagement within the community.

In the past, the Seniors Community Grant Program has supported community-based activities like seniors' fitness classes, lawn bowling, brain fitness activities, multicultural dance, along with a public education and awareness campaign that challenges the myths and stereotypes that portray older adults as frail, out-of-touch, technologically illiterate, and no longer employable.

The application period for the Seniors Community Grant Program is now open and will close on August 7, 2020. Unincorporated and incorporated not-for-profit organizations, local services boards, or Indigenous groups must submit applications to Transfer Payment Ontario (formerly Grants Ontario) online at Ontario.ca/GetFunding.

DID YOU ALSO KNOW

  • Since the Seniors Community Grant Program was established in 2014, nearly 1,900 grants have been provided, which have positively impacted the lives of more than half a million seniors.

  • By 2023, there will be three million Ontarians over the age of 65. Older adults are the province’s fastest growing demographic.

  • Questions about the program can be answered by contacting the Ministry for Seniors and Accessibility: email: seniorscommunitygrant@ontario.ca; toll free: 1-833-SCG-INFO (1-833-724-4636); TTY (for the hearing impaired): 1-800-387-5559; fax: 416-326-7078.

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CKL POST-SEC STUDENTS - SUPPORT YOUR COMMUNITY NOW AND GET PAID BY THE GOVERNMENT - TAKE ADVANTAGE OF PAID WORK EXPERIENCE TO HELP YOUR FUTURE.

The federal government has announced the launch of the Canada Student Service Grant (CSSG), which will support post-secondary students and recent graduates as they volunteer to serve in their communities’ COVID-19 response and gain valuable experience at the same time.

The CSSG will provide these volunteers with a one-time payment of between $1,000 and $5,000 based on the number of hours they serve.

To find not-for-profit organizations looking for help during the pandemic, post-secondary students and recent graduates can use the new I Want to Help platform, which also launched today.

The Government of Canada is also helping young Canadians find paid work placements and get the skills they need to start their careers. These activities include:

  • Supporting an additional 20,000 job placements for post-secondary students in high demand sectors. A new investment of $186 million in the Student Work Placement Program will help more post-secondary students across Canada get paid work experience related to their field of study. This funding is in addition to the $80 million that was announced on April 22, 2020.

  • Creating 10,000 new job placements for young people between the ages of 15 and 30 through the Canada Summer Jobs program. New funding of over $60 million will help expand the current work placement target from 70,000 to 80,000, creating 10,000 more placements for young people aged 15 to 30. The program provides wage subsidies to employers so they can give quality work experience to young Canadians and help them develop the skills they need to transition into the labour market.

  • Creating 5,000 new internships through Mitacs for college and university students across Canada with small and medium-sized businesses. Funding of $40 million will also help develop partnerships with new industries, and offer internships to students in more areas of study.

  • Increasing funding to the Digital Skills for Youth (DS4Y) program by $40 million to help post-secondary graduates gain professional work experience. DS4Y provides wage subsidy opportunities to help connect young people with small and medium-sized businesses and not-for-profits.

  • Creating over 3,500 new job placements and internships through the Youth Employment and Skills Strategy. New funding of $34 million, in addition to the over $153 million announced on April 22, will support programs serving high-demand sectors such as health, community services, and information technology, and help other sectors to recover.

  • Providing $6.7 million for the Computers for Schools Plus (CFS+) program. The partnership-based program refurbishes donated surplus computers and electronic devices, and provides them to schools, libraries, not-for-profit organizations, Indigenous communities, and low-income Canadians. It also offers paid, practical work internships for young people, through which they can develop advanced digital skills as well as experience in project management, teamwork, and communications.

  • Creating 5,000 to 10,000 more work-integrated learning opportunities through the Business + Higher Education Roundtable (BHER). The BHER will launch a national challenge for students to develop creative solutions in response to current and future sector needs as defined by Canadian industry. The national student challenge will help connect Canada’s small and medium-sized businesses with the next generation of talent in Canada.

The Canada Student Service Grant and I Want to Help platform are part of the nearly $9 billion in support for post-secondary students and recent graduates announced by the Government of Canada on April 22, 2020. The funding for Mitacs, DS4Y, CFS+, and the Business + Higher Education Roundtable also fall under this funding.

As part of its COVID-19 Economic Response Plan, the Government of Canada is providing support for students who want to make a difference in their communities, while gaining the skills and supports needed for future success whether that be in their studies or in the job market. This support also includes the Canada Emergency Student Benefit, and temporary changes to the Canada Summer Jobs and Canada Student Grants and Loans programs.

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DESIGNATING A BENEFICIARY FOR YOUR RRSPs - AVOID UNINTENDED TAX CONSEQUENCES AND A LEGACY OF LITIGATION FOR YOUR FAMILY.

Generally, you can designate a beneficiary for your RRSPs.

If you do, generally the RRSP will be paid to your designated beneficiary on your passing. The RRSP will not form part of your Estate and, therefore, not be subject to Ontario’s estate administration tax.

However, the problem: the federal Income Tax Act provides that, even though the RRSP will pass to your designated beneficiary (outside of your Estate), tax will be payable by your Estate on those funds as of your death (as if you had withdrawn those funds). This can create a burden on your Estate and its beneficiaries, which they may perceive as unfair. In other words, your designated beneficiary gets the RRSP funds, but not the corresponding tax burden created by the Income Tax Act on your death.

This often causes litigation, which you were likely trying to avoid in your Estate plan.

Careful estate planning is important, including considering potential tax issues that can arise on your death.

There are some ways to potentially avoid this, such as:

1.            Having an insurance policy, payable to your estate, for example, that will pay the tax burden on the RRSPs that you designate to someone on your death;

2.            Rolling over your RRSPs to your spouse or a dependent child, if you meet the specific requirements of the Income Tax Act to do so (consultation with an accountant or tax-experienced lawyer would be helpful); and/or

3.            Designate your Estate as the beneficiary of your RRSPs – although this will mean estate administration tax is likely payable on those funds, that is likely less of a financial burden to your beneficiaries than the alternative. The Estate can receive and pay the tax on the RRSP on your death using this approach. You can even specify in your estate plan that the net amount is payable to a specific person, such as the person you could have designated as your beneficiary on the RRSP.

Estate planning is important. To avoid unintended results and possibly creating conflict among your family member beneficiaries, creating your plan with a good, qualified estate planning lawyer is well worth the modest investment.

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WHAT IF I AM FIRED? WHAT SHOULD I EXPECT FOR SEVERANCE? "PAY IN LIEU" EXPLAINED.

If you are terminated by your employer and:

[1] firstly, there is no “just cause” for your termination; and

[2] secondly, you do not have a written employment agreement or, if you do, there is no clause restricting you to only the statutory notice of termination required by the Employment Standards Act, 2000 of Ontario (the “ESA”) (or, if there is a such a clause, it is not enforceable against you – refer to the checklist in our earlier blog about this),
then, in addition to your statutory entitlements on termination under the ESA, you are likely entitled to “common law” reasonable notice of termination.

An employee’s termination entitlements at “common law” generally are significantly more than those required by the ESA.

COMMON LAW” REASONABLE NOTICE - EXPLAINED:

Employment in Ontario is purely contractual between the employer and the employee. Employers can terminate employees at any time – they do not need a reason.

However, if they do terminate, the obligation of giving “reasonable notice” is imposed by the law of Ontario, both by the ESA and ‘judge-made’ law, subject to any written employment entered by the employer and the employee that varies or changes the general law of Ontario applicable to employment terminations.

Unless the employer and employee agree otherwise in their written employment agreement, the law in Ontario imposes an obligation on employers to give reasonable notice before terminating an employee generally. Either an employer must give this reasonable notice before terminating or, if they do not, they will have to pay to the employee an equivalent amount for that reasonable notice that was not given. Employees must give reasonable notice before resigning, too, but that notice is generally much shorter.  

Generally, “common law” reasonable notice by employers is: (a) determined by the Court, often in wrongful termination lawsuits commenced by employees; and (b) determined based on multiple factors in each case, such as the employee’s age, position, responsibility, years of service, compensation received and ability to find alternative employment.   

Effectively, an obligation to give reasonable notice is designed to lessen the impact of a termination, particularly for the employee. The employer has the opportunity to take the necessary steps to replace the employee and the employee can seek and obtain comparable, alternate employment.

If an employer terminates without providing reasonable notice, but had an obligation to do so, the employer has breached the parties’ employment relationship and will likely have to pay damages equivalent to the amount of reasonable notice that should have been provided to the employee.

These damages are commonly called “pay in lieu of notice” and are calculated based on all, or the global, compensation and benefits the employee would otherwise have earned had he or she actually continued to be employed during the reasonable notice period. Generally, this calculation will include salary, pension contributions, bonuses, commissions, equity grants, if any (such as stock options, etc.), corporate vehicle use and other taxable and non-taxable benefits, if they formed part of the employee’s regular and recurring compensation during employment.

These damages also incorporate and include the statutory notice required by the ESA. However, an employer must actually pay to the employee any statutory severance pay required by the ESA, by lump sum, based on a specific formula set out by the ESA, unless the employee agrees otherwise. In other words, the employer cannot satisfy its statutory severance pay obligation by giving notice of termination to the employee – rather, it must actually be paid.

There is no ‘golden rule’ to accurately predict the amount of reasonable notice for each case of termination. It is difficult to predict, often. Some lawyers use the ‘month-per-year’ rule of thumb, but that is not the law. Every case is different, generally, and must be analyzed based on the specific circumstances of the case. Generally, however, it is reasonably safe to assume that the longer the years of service, older the employee and more responsibility the employee had, the longer will be the reasonable notice period in the case.

Reasonable notice rarely exceeds two (2) years, but there are a few cases in which the Court exceeded this commonly accepted maximum for reasonable notice in Ontario.

Generally, an employee’s entitlement to reasonable notice will be dependent on that employee’s specific factors, all of which must be considered together in that particular case.

WHAT IS ‘WORKING NOTICE’?  

If an employer decides to give reasonable notice of termination before terminating (i.e., during the relationship), it is commonly referred to as ‘working notice’. Employers often use ‘working notice’ to avoid paying an amount to the employee for reasonable notice after termination – it can significantly reduce the liability of the employer. This way, they derive more value, too, because the employee will continue to work for the employer during the reasonable notice period (as opposed to being terminated abruptly, in which case the employer will likely have to pay the equivalent amount for the reasonable notice that was not given to the employee).  

During the working notice period, the employee continues to work ordinarily and the employer continues to pay the usual compensation and benefits – effectively, a status quo arrangement. The employer may progressively discipline the employee during the working notice period and, if proper “just cause” arises, may terminate the employee without compensation. Generally, the employee will be entitled to some time away from work, reasonably, for the purpose of searching for and obtaining alternative employment, such as attending job interviews, etc.

If the ‘working notice’ period is equal to or more than what the Court would determine to be reasonable notice of termination, the employer will not have to pay the employee terminated-related compensation when the working notice period ends. If the working notice is too short, the employer may still have to pay common law reasonable notice at the end of the working notice period. Every case has to be analyzed based on the specific circumstances.

CONCLUSION – HAVE A WRITTEN EMPLOYMENT AGREEMENT:

Most employers wish to avoid having to deal with “common law” reasonable notice – it is both unpredictable and very expense, especially if the employee sues the employer for wrongful termination alleging insufficient notice was given or paid to the employee.

In order to avoid the “common law” being applied to the employment relationship, there must be a written employment agreement properly entered by the parties before the relationship starts. If so, the employer can avoid the uncertain and potentially expensive outcome the common law may impose.

Therefore, from an employer’s perspective, at least, there should always be a written employment agreement entered, which clearly and simply outlines the employee’s entitlements in the event of a termination without cause, particularly if they may be less that what the “common law” may award to the employee. In addition to minimizing costs, enforceable termination provisions also offer more certainty to both parties if the relationship ends.

 

 

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ONT GOV SPENDING $13 MILLION ON NEW YOUTH AND FAMILY INNOVATIVE PROJECTS. WHAT YOU NEED TO KNOW TODAY........

The Ontario government is investing more than $13 million to support community- driven and youth-led projects to improve the well-being of children, youth, and families facing economic and social barriers.

The funding will flow through the 2020 Youth Opportunities Fund, a province-wide initiative that creates opportunities for young people and empowers and supports parents, guardians and caregivers. 

The 2020 Youth Opportunities Fund will provide financial support to 43 community organizations that will benefit youth aged 12 to 25, and their families. Projects receiving funding this year include:

  • Black Moms Connection ― focusing on economic empowerment for Black mothers across the Greater Toronto Area (GTA).

  • Immigrants francophones d'Afrique pour l'intégration et le développement (IFAPID) to support newcomers from Francophone African nations to navigate financial systems in Canada.

  • Earthling Art Collective ― to provide development and mentorship opportunities for youth leaving care and the justice system in Thunder Bay.

  • Miziwe Biik Aboriginal Employment & Training ― to help Indigenous youth in the GTA access employment and training opportunities in the skilled trades.     

The Youth Opportunities Fund provides funding through the following three granting streams:

  • Youth Innovations ― Provides youth facing multiple barriers with the resources they need to design and deliver new and inspiring solutions to issues that matter to them and their communities.

  • Family Innovations ― Invests in local, community-driven groups delivering culturally relevant projects that empower and support parents, guardians and caregivers who face barriers and challenges to child and family wellbeing.

  • System Innovations  Supports organizations that are strengthening the quality and responsiveness of systems so that they may work better for young people facing multiple barriers.

DID YOU ALSO KNOW

  • Youth Opportunities Fund grants are administered by the Ontario Trillium Foundation.

  • Applications for the 2021 Youth Opportunities Fund grants will open in fall 2020.

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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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$100,000 DAMAGES FOR POSTING INTIMATE ONLINE PICS - THERE IS A CONSEQUENCE TO WHAT IS DONE ONLINE.

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

The Ontario Court is increasingly awarding significant damages against those who do so. For example, in a case called Jane Doe 464533 (the Plaintiff’s name cannot be disclosed), the Court ordered damages and costs totaling $141,000, plus an order for the offending Defendant to destroy any video or images he retains of the Plaintiff and prohibiting him from sharing any intimate images of her. He was also ordered not to communicate with the Plaintiff or any of her family.

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

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

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

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

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

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

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

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ONLY IN ONTARIO - SAYING "SORRY" CAN LIMIT OR ELIMINATE THE DAMAGES YOU PAY FOR DEFAMING ANOTHER.

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

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

This is uniquely an Ontario-only legal initiative.

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

Not anymore.

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

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

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

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

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

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

Apology Act, 2009

S.O. 2009, CHAPTER 3

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

No Amendments.

Definition

1. In this Act,

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

Effect of apology on liability

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

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

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

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

Exception

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

Evidence of apology not admissible

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

Exception

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

Criminal or provincial offence proceeding or conviction

3. Nothing in this Act affects,

(a) the admissibility of any evidence in,

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

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

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

Acknowledgment, Limitations Act, 2002

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

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

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

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

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

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ONTARIO STATE OF EMERGENCY EXTENDED TO JULY 15. ALL ORDERS REMAIN IN EFFECT.

In consultation with the Chief Medical Officer of Health, the Ontario government has extended the provincial Declaration of Emergency under s.7.0.7 of the Emergency Management and Civil Protection Act to July 15, 2020. 

The provincial Declaration of Emergency enables the government to make, and as needed amend, emergency orders that protect the health and safety of all Ontarians. Emergency orders in force under the Declaration of Emergency include those allowing frontline care providers to redeploy staff to areas most in need, limiting long-term care and retirement home employees to working at one home, and enabling public health units to redeploy or hire staff to support the province's enhanced case management and contact tracing strategy. These measures continue to be needed to protect seniors and other vulnerable populations from the threat of COVID-19. The extension of the Declaration of Emergency will allow the province to make or amend emergency orders as needed as it continues to ease restrictions in support of its phased reopening.  

In consultation with the Chief Medical Officer of Health, the government will continue to monitor public health trends related to COVID-19 and assess on an ongoing basis whether the provincial Declaration of Emergency needs to be extended further. The government will also continue to review emergency orders currently in place to determine when and if it is safe to amend or lift them as more places in the province are allowed to reopen in a safe and measured way.

As of June 24, 33 public health unit regions have entered Stage 2 of the Framework for Reopening our Province, allowing more businesses and services to open and getting more people back to work. The Windsor-Essex County public health unit region remains in Stage 1 and the situation in the region will continue to be assessed on an ongoing basis.

A full list of emergency orders can be found on the e-Laws website under the Emergency Management and Civil Protection Act and at Ontario.ca/alert.

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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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CKL BARS AND RESTAURANTS - THE RULES FOR EXPANDING OR BUILDING A NEW OUTDOOR PATIO DURING PHASE 2. WHAT YOU NEED TO KNOW.

Bars, restaurants and other approved liquor sales licensees in the CKL may be permitted to temporarily extend the size of their existing licensed patio, or temporarily add a new licensed patio.

Ontario has authorized these extensions and additions within the approved period, without a separate licence or approval, provided all of the following conditions are met:

  • the physical extension of the premises is adjacent to the premises to which the existing licence to sell liquor applies;

  • the municipality in which the premises is situated does not object to an extension;

  • the licensee is able to demonstrate sufficient control over the physical extension of the premises; and

  • there is no condition on the liquor sales licence prohibiting a patio.

Accordingly, every liquor sales licensee in the CKL should review their licences for any relevant restrictions and ensure that any extension or addition is designed to be adjacent to the licensed area and within the licensees' control.

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WHAT OUR RESTAURANTS AND BARS MUST LEGALLY DO TO PROTECT OUR SAFETY AS WE RESUME OUR DINING OUT ENJOYMENT DURING PHASE 2. WHAT YOU NEED TO KNOW.

Restaurants and bars in the CKL are required legally to take appropriate measures to ensure physical distancing of at least two metres between patrons from different households, including by:

  • using reservations;

  • limiting the number of patrons allowed in the outdoor space at one time;

  • ensuring enough space between tables (including to allow for movement); and

  • limiting access to any indoor facilities, including accessing the patio/outdoor dining area, picking up or paying for food, using washrooms or other health and safety purposes.

Ontario has also published resources, best practices and information for all restaurant and food-services workers to help prevent the spread of COVID-19 at work.

Under those requirements, servers, bartenders, cashiers, hosts, chefs, dishwashers, administrators, drive-thru operators, and maintenance staff should, among other recommendations:

  • wash their hands often with soap and water or alcohol-based hand sanitizer, including after making or receiving deliveries, touching high-touch areas, and after removing gloves;

  • sanitize surfaces and equipment often, between each transaction if possible;

  • wear gloves when interacting with high-touch areas, if possible;

  • wash clothes when they return home; and

  • immediately notify their supervisor if they are ill, complete a self-assessment and follow the instructions contained there.

In addition to facilitating clean worksites by providing access to materials and time for proper sanitization, employers can help minimize contact with customers (including by minimizing or eliminating cash and at-the-door transactions), assign staff to ensure physical distancing is maintained in congested areas, use floor markings and barriers to manage traffic flow, refuse to accept customers' re-usable bags and containers, install barriers (such as plexiglass or markings on the floor) to ensure distance between customers and cashiers, stagger shifts and lunch breaks, and hold meetings outside.

Employers will be asked to 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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CKL BUSINESSES - FREE, COMPUTER MODULE TRAINING FOR YOUR EMPLOYEES TO TARGET SYSTEMIC DISCRIMINATION AND PROMOTE DIVERSITY IN YOUR WORKPLACE. FREE. EASY. CERTIFICATE REWARDED. CHECK IT OUT.

CKL businesses and organizations - discrimination and diversity in your workplaces is paramount. 

To promote inclusiveness and target systemic discrimination, did you know that you can arrange for all of your employees, including management, to complete training to promote understanding and compliance with the (Ontario) Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c 11 (the “AODA”) and the (Ontario) Human Rights Code (the “Code”). The training is designed to help every employee learn about his or her rights and responsibilities under both the AODA and the Code, including how they affect each employee in the workplace.

An excellent (online) training program is offered by the Ontario Human Rights Commission. The program is called “Working Together: The Code and the AODA”. The program is free. The Web site to use the training program is:

http://www.ohrc.on.ca/en/learning/working-together-code-and-aoda

This five--part e-learning series (approximately 20 minutes) is for public, private and not-for-profit sectors and also completes the training requirements for section 7 of the Integrated Accessibility Standards of the AODA, which you must comply with, by law.  Each video is approximately four minutes in duration, as follows:

There is a quiz at the end of each video for each employee to complete, in order to obtain the certificate.

After each employee completes the training program, being a five-part e-learning series, a certificate is issued to that employee. You would obtain and retain these certificates for every employee.

Having certificates for each employee will not only minimize the risk of potential non-compliance and improve the workplace environment generally, but having the training/certificates available will likely assist you in the event of any potential claim or issue in future – that is good risk management practice.

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CLK BUSINESSES - DYK THERE IS FREE, ONLINE TRAINING FOR YOU AND YOUR EMPLOYEES FOR COVID-19 SAFETY AND OCCUPATIONAL HEALTH AND SAFETY GENERALLY? FREE. EASY. CHECK IT OUT. MAXIMIZE SAFETY; MINIMIZE LIABILITY.

CKL businesses and organizations, did you know that you can arrange for your employees , including management, to complete training to promote understanding and compliance with the (Ontario) Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”) .

The training is designed to help every employer and employee learn about his or her rights and responsibilities under the OHSA, including how they affect each employer and employee in the workplace.

An excellent (online) training program is offered by the (Ontario) Ministry of Labour. The program is called “Worker Health and Safety Awareness in 4 Steps”. The program is free.

The Web site to use the training program is:

https://www.labour.gov.on.ca/english/hs/elearn/worker/foursteps.php

This four-part e-learning series (approximately 16 minutes) is for public, private and not-for-profit sectors. Each video is approximately four minutes in duration, as follows:

  • Get on Board
  • Get In the Know
  • Get Involved
  • Get More Help

There is a quiz at the end of each video for each employee to complete, in order to obtain the certificate.

After each employee completes the training program, being a four-part e-learning series, a certificate is issued to that employee. You would obtain and retain these certificates for every employee.

Having certificates for each employee will not only minimize the risk of potential workplace injury, safety violation or non-compliance with the OHSA, but also improve the workplace environment generally.

Having the training/certificates available will also likely assist you in the event of any potential claim or issue in future related to workplace injury or safety contravention – that is good risk management practice.

As you know, workplace injury can create significant liability issues for an employer – every step you can take to minimize that risk and potential exposure is wise. 

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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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WHAT IF THERE IS A COVID CASE IN MY WORKPLACE? WHAT YOU NEED TO DO.

Despite the wonderful weather, COVID-19 still pervades our community, including through asymptomatic carriers. 

What you should do if there is a case of COVID-19 in your workplace: 

Employees/Co-workers

  • Anyone with a confirmed or suspected case of COVID-19 must NOT go to work and should self-isolate at home. If contact with a positive case is confirmed, further directions will be provided by the Health Unit

  • Physical distancing rules at work mean employees should not be in close contact with each other. If, however, an employee is identified as being a close contact of a co-worker who is confirmed or suspected of having COVID-19, the person should immediately take Ontario’s online COVID-19 Self-Assessment Tool to see what further care is needed or call Telehealth Ontario at 1-866-797-0000 The employee may also be contacted by the Health Unit with further directions on what to do, including self-isolating or self-monitoring for symptoms of COVID-19.

  • Employers are strongly urged to support the COVID-19 instructions your employees have received from any health care provider. This protects the health of your workers and customers

  • Encourage everyone at work to continue following physical distancing rules (staying 2 metres or 6 feet apart from others) and regularly wash hands with soap and water

  • Continue to frequently clean and disinfect commonly touched or shared surfaces at work, including tools, equipment and workstations.

Customers/Clients

  • Follow direction from the Health Unit about any extra precautions that are needed to reduce the risk of illness. These directives can include: getting employees/staff who were in close contact with the customer/client to self-isolate or self-monitor for COVID-19 symptoms, increasing cleaning and disinfecting at your workplace, and other measures

  • Continue to keep employees and customers safe:

    • Follow provincial rules that specify how your business/workplace can operate (for example, only offer curbside pickup, limit number of people in store, etc.).

    • Ensure a 2-metre (6-foot) distance is kept between people.

    • Reduce overcrowding.

    • Increase your online or phone services

    • Offer curb-side delivery

    • Make hand sanitizer available for customers at entry and exit points.

Credit

Haliburton, Kawartha, Pine Ridge Health Unit

https://www.hkpr.on.ca/2020/06/09/reopening-your-business-during-covid-19-2/

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THE NEW SCHOOL PLAN - HUH??????? YOUR GUESS IS AS GOOD AS MINE.

The Ontario government announced  the release of a safety plan for the 2020-21 school year. 

According to the government press release, school boards will be asked to plan for the following three scenarios:

1. “Normal school day routine with enhanced public health protocols - Students going to school every day, in classes that reflect standard class size regulations.

2. Modified school day routine - Based on public health advice, an adapted delivery model has been designed to allow for physical distancing and cohorts of students. Under this model, school boards are asked to maintain a limit of 15 students in a typical classroom at one time and adopt timetabling that would allow for students to remain in contact only with their classmates and a single teacher for as much of the school day as possible. This model would require alternate day or alternate week delivery to a segment of the class at one time.

3. At home learning - Should the school closure be extended, or some parents choose not to send their child back to school, school boards need to be prepared to offer remote education. Remote education should be delivered online to the greatest extent possible, including the establishment of minimum expectations for students to have direct contact with their teacher at the same time on a regular basis, also known as synchronous learning. Synchronous learning can be used as part of whole class instruction, in smaller groups of students, and/or in a one-on-one context.”

The government also:

  • announced $4 million in funding for school cleaning, cleaning protocols and the hiring of additional custodial staff in September 2020; and

  • announced $736 million of additional funding in public education for the 2020-21 school year. 

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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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CKL FARMERS - MORE PROTECTION AGAINST TRESPASS ON YOUR LANDS AND THEFT OR ABUSE OF YOUR LIVESTOCK - NEW RULES FOR ANIMAL WELFARE AND PEACEFUL PROTESTS. NEW HOTLINE FOR ANIMAL ABUSE.

The Ontario government is focusing more on balancing  the safety and security of farmers, their families and the provincial food supply by protecting the right for people to participate in lawful protests on public property.

Today, Bill 156, the Security from Trespass and Protecting Food Safety Act, 2020received Royal Assent.

Once proclaimed into force, the Act will further protect against the health and safety risks of on-farm trespassing.

In recent years, farmers have faced increased levels of trespass and theft of livestock from their farms as well as mental heath stress due to these threats.

Bill 156 will increase protections for those farmers while simultaneously protecting the right for people to participate in lawful protests on public property.

The Security from Trespass and Protecting Food Safety Act, 2020 helps deter trespassers by:

  • Escalating fines of up to $15,000 for a first offence and $25,000 for subsequent offences, compared to a maximum of $10,000 under the Trespass to Property Act;

  • Prescribing aggravating factors that would allow the court to consider factors that might justify an increased fine;

  • Allowing the court to order restitution for damage in prescribed circumstances which could include damage to a farmer's livestock or from theft;

  • Increasing protection for farmers against civil liability from people who were hurt while trespassing or contravening the act, provided the farmer did not directly cause the harm;

  • Removing consent to enter a farm property when it was given under duress or false pretenses.

Last year, the government passed the Provincial Animal Welfare Services Act, 2019, giving Ontario the strongest penalties in Canada for people who are convicted of animal abuse. The province now has the first fully provincial government-based animal welfare enforcement system in Canada.

If anybody in Ontario believes that an animal is being mistreated, they should call 1-833-9ANIMAL or 1-833-926-4625 and have a trained inspector investigate the allegation.

 

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BIG BOOST TO FUNDING CKL PUBLIC SCHOOLING ANNOUNCED - WHAT YOU NEED TO KNOW TODAY.....

Today the Ontario government announced it is investing $736 million more in public education for the 2020-21 school year, increasing the total to more than $25.5 billion.

This funding, through the Grants for Student Needs (GSN) program, represents the largest investment in public education in Ontario's history.

As a result, Ontario's average per-pupil funding amount has reached $12,525, which is an increase of $250 over the previous year.

All 72 district school boards in the province are projected to have increases to their GSN allocations for the upcoming school year, which includes record-high investments in special education, mental health and well-being, among many other key areas.

Under the GSN, the new $213 million student-centric Supports for Students Fund (SSF) will support:

  • special education,

  • mental health and well-being,

  • language instruction,

  • Indigenous education, and

  • STEM programming.

The Supports for Students Fund can also be used for additional critical staffing needs during the return to school in September, including hiring custodians and education assistants for students who need support.

In addition to the GSN, Ontario is providing funding for the Priorities and Partnerships Fund (PPF), which enables school boards and third-parties to undertake important initiatives and provide critical resources for curricular, extra-curricular, and wrap-around supports. In the upcoming school year, the PPF is projected to be over $300 million, funding approximately 150 initiatives to support students.

DID YOU ALSO KNOW: 

  • The Government is providing funding to support the mental health and well-being of students upon the return to school in Fall 2020, as a result of emerging needs related to the COVID-19 school closures.

  • Ontario is also continuing to invest $1.4 billion in school facility repair and renewal to support healthy and safe learning environments, which directly aligns with a recommendation from the Auditor General of Ontario.

  • The Ministry of Education provides operating funding to Ontario’s 72 district school boards through the annual GSN education funding model. Funding to school boards is provided on a combination of per student, per school, and per board basis.

  • Ontario launched Learn at Home and Apprendre à la maison, a new online portal that provides resources for families so students can continue their education while schools are closed due to the ongoing COVID-19 situation.

  • Visit Ontario’s website to learn more about how the province continues to protect Ontarians from COVID-19.

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HOW TO PROMOTE AND ACHIEVE DIVERSITY AND INCLUSION IN YOUR WORKPLACE - EASY STEPS TO TACKLING SYSTEMIC DISCRIMINATION IN YOUR BUSINESS.

Workplaces in the CKL must promote and achieve diversity, equity and inclusion.

This change must be initiated from the top down.

Measurable objectives must be set.

Education and training in the workplace about bias and inequity is critical. 

Accountability to achieve those objectives is paramount. 

Mere denunciation of racism is woefully insufficient; rather, a workplace must adhere to a specific call of action.

To do so, everyone in the workplace must:

  • speak up when you experience or witness intolerance, mistreatment or bias in action – saying nothing condones discrimination: if you see something, say something;

  • generate an inclusive environment for everyone – seek different perspectives and respect points of view and communication styles that are different from your own;

  • realize and process your feelings; and

  • as an organization, collectively agree to do better.

Minimizing, if not eliminating, systemic discrimination and bigotry in a workplace is a challenging, but realizable, ideal. 

It will require education, training and raising awareness proactively, including about unconscious bias and at a minimum requires the creation and implementation of a policy on diversity and inclusivity.

Every workplace diversity and inclusion policy, even if not legally required, should include:

  1. a statement of commitment to creating and maintaining a diverse and inclusive workplace;

  2. a statement that the policy applies to all aspects of employment as well as to interactions with customers/clients;

  3. a process that provides the opportunity for dialogue within the workplace with respect to barriers to diversity and inclusion;

  4. a commitment to education and training of management and staff to ensure that an understanding of the individualized needs in the workplace are understood by all;

  5. a statement of commitment to human rights, equity and privacy laws;

  6. a complaints process; and

  7. a statement that collection of personal information will be kept confidential.

Need help with your new diversity and inclusion policy in your workplace? Give us a call. 

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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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LINDSAY'S DRIVETEST REOPENING ON MON - NO REQUIREMENT TO USE ONLY THE FACILITY IN YOUR OWN MUNICIPALITY

Lindsay's DriveTest re-opens on Monday.  

Ontario's driver testing services provider, DriveTest, will begin offering limited services across the province beginning Monday, June 22, 2020, with the expectation of restoring full services by September.

This gradual, staggered approach, based on customer date of birth, will ensure that strict protocols are in place to prevent the spread of COVID-19.  

DriveTest centres will begin serving customers based on when they were born to reduce crowding, support new requirements for physical distancing, health checks and enhanced sanitation. People with birthdays between January to June will be allowed to visit a centre the first week of reopening, and people with birthdays between July to December will have access to DriveTest services the following week. Access to DriveTest services will continue to alternate weekly until full services are restored.

In the first phase, all 56 full-time DriveTest centres will reopen on Monday for G1 and M1 knowledge tests, driver's licence exchanges and commercial driver's licence applications and upgrades. Commercial road tests will also be available by appointment at 28 locations across Ontario.

To protect the safety of Ontarians, DriveTest will also require customers to wear face coverings inside centres and during road tests, sanitize their hands when they enter the building and undergo temperature checks before road tests. All DriveTest staff will wear personal protective equipment when serving customers. Driver examiners will also be equipped with face shields, sanitizer packages and seat covers when conducting road tests.

Details of the DriveTest reopening plan, which outline the driver testing services available, how to access DriveTest centres, and which customers are being served each week, will be updated every Monday on DriveTest.ca.

Notably there is no restriction imposed whereby you can only attend the DriveTest in the municipality in which you currently reside on a primary basis.   

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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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CKL HOG AND BEEF FARMERS - $10 MILLION NEW FUNDING AS OF TODAY. PER HEAD AMOUNT TO KEEP MARKET READY.

The governments of Canada and Ontario are investing up to $10 million in emergency assistance for beef and hog farmers.

The funding will help cover the increased costs of feeding market ready cattle and hogs due to COVID-19 related processing delays, while redirecting surplus pork products to help those in need.

This program is intended to help ensure the country's food supply chain will remain strong and ready to recover as the economy gradually and safely reopens.

The beef cattle set-aside program will provide beef farmers with up to $5 million in support.

Farmers can claim $2 per head of cattle per day to help pay for additional maintenance costs should they have to keep their market-ready animals on their farms for extended periods of time.

The hog sector support program will also provide hog farmers with up to $5 million to help cover additional maintenance costs. Ontario is also providing up to $1.5 million to process and package surplus pork for food banks, to provide those in need with fresh, locally produced pork products. This will assist the pork processing industry with managing capacity while helping those in need.

Both the beef cattle set-aside and hog sector support programs are being offered through AgriRecovery initiatives, under the Canadian Agricultural Partnership. The provincial contributions are part of Ontario's Action Plan: Responding to COVID-19.

 

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ONTARIO BANS COMMERCIAL EVICTIONS TODAY - EXPECTED TO PASS BY TONIGHT. A BACKFIRE ON "GREEDY" LANDLORDS. WHAT YOU NEED TO KNOW.

Today the Ontario government introduced legislation to temporarily ban commercial evictions.

Many commercial landlords have refused to participate in the CECRA program, administered by both the federal and provincial governments, leaving many small businesses with no ability to carry on business.  

The legislation will protect commercial tenants from being locked out or having their assets seized due to the negative impacts of COVID-19.

It would be retroactive to May 1. 

The government is seeking unanimous consent from all parties in the legislature today to expedite the passage of the bill and have it become law by the evening.

 

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RECOVERY IN THE CKL - NEW LAWS/RULES ANNOUNCED FOR CKL BUSINESSES AND ORGANIZATIONS TO OPERATE DURING PHASE 2 AND BEYOND - WHAT YOU NEED TO KNOW.

The Ontario government has published a new order requiring businesses and organizations in the CKL that are reopening to:

  • operate in accordance with all applicable laws, including the Occupational Health and Safety Act and related regulations;

  • operate in compliance with the advice, recommendations and instructions of public health officials, including with respect to physical distancing, cleaning or disinfecting;

  • where open to the public, ensure that members of the public maintain a physical distance of at least 2-metres from other persons (except persons who have arrived at the business/facility together); and

  • ensure that any washrooms available to the public are cleaned and disinfected as frequently as is necessary to maintain a sanitary environment.

The Order also includes sector specific compliance requirements and conditions for reopening. 

Check it out here:

https://www.ontario.ca/laws/regulation/r20263 

 

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TESTING POSITIVE MEANS GOVERNMENT QUESTIONS - YOUR PRIVACY DURING (AND AFTER) THE PANDEMIC.

The Ontario government has announced a proposed, regulatory change to mandate the reporting of data on race, income, language and household size for individuals who have tested positive for COVID-19.

Reportedly this will help to ensure the province has a more complete picture of the outbreak.

This change will allow for the collection of data in a consistent way across the province, while ensuring the privacy of Ontarians is protected.

Under these proposed changes, individuals who have tested positive for COVID-19 infection will be asked additional questions about their race, income, languages spoken, and household size.

Individuals can choose not to answer any or all of these questions.

Individuals' privacy is protected as it is for all information currently collected on other diseases.

Collecting data province-wide, and in a standardized way, will ensure a more complete picture of the outbreak is captured, says the government.

 

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CKL FARMERS - $15 MILLION NEW FUNDING TODAY FROM ONTARIO - RETAIN EMPLOYEES, PPE, RETROFITTING - WHAT YOU NEED TO KNOW ABOUT TODAY'S ANNOUNCEMENT.

The Ontario government has announced $15-million in supplemental Agri-food Workplace Protection Program funding for health and safety measures on farms and in food processing facilities. According to a government press release, this funding will help farmers purchase personal protective equipment and implement workplace modifications and other measures to improve health and safety for their workers.

Specifically, the Enhanced Agri-food Workplace Protection Program provides cost-share funding for farmers to purchase Personal Protective Equipment (PPE) and implement workplace modifications and other measures. By significantly expanding the program, farmers can take additional steps to improve health and safety for their workers and ensure the continued supply of locally grown food during the COVID-19 outbreak.

This announcement more than triples the earlier investment in this program by the governments of Canada and Ontario.

Both levels of government had committed a total of up to $4.5 million for farmers and provincially licensed meat processors to enhance worker safety under the Canadian Agricultural Partnership program.

Some of the measures already approved through this program include purchases of PPE, temporary housing for ill workers, building physical barriers for worker separation, enhanced hand washing facilities and a tent rental to expand lunch room space.

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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 BUSINESSES - NEED MORE ONLINE PRESENCE? E-PAY HELP? BROADER MARKETING? RECOVERY MEANS CHECKING OUT THE NEW FUNDING TO JOIN THE "DIGITAL MAIN STREET" - $5.7 MILLION AND MORE. WHAT YOU NEED TO KNOW.

The Ontario has announced a new $5.7-million in funding to help small businesses reach more customers, create and enhance their online presence, and generate jobs through an online platform called the "Digital Main Street". 

It is intended to help up to 22,900 Ontario businesses create and enhance their online presence and generate jobs for more than 1,400 students.

Through the $57-million contribution to the Digital Main Street platform, businesses will be able to take advantage of three new programs to support their digital transformation:

  • shopHERE powered by Google, intended to leverage Ontario's strengths by hiring highly skilled and trained students to build and support the launch of online stores for businesses that previously did not have the capacity to do so themselves. The core goal will be to help small businesses compete and grow, in a world that is increasingly online, and help them recover as quickly as possible following COVID-19.
  • Digital Main Street Grant will help main street small businesses be digitally more effective. Through a $2,500 grant administered by the Ontario BIA Association, small businesses will be able to adopt new technologies and embrace digital marketing. Municipalities, Chambers of Commerce, and Business Improvement Areas (BIAs) can apply for a Digital Service Squad grant, which will allow them to establish teams to provide personalized, one-on-one support.
  • Future-Proofing Main Street will provide specialized and in-depth digital transformation services and support that helps existing main-street firms adapt to changes in their sector and thrive in the new economy. By leveraging teams of digital marketing professionals and talented students, these firms will be able to create new online business models, develop and implement digital and e-commerce marketing strategies, and maximize digital tools, platforms and content.

In addition, the Recovery Activation Program, operated through the Toronto Region Board of Trade, will help businesses grow and digitize their operations with custom consulting sessions, online resource sharing, learning webcasts and business planning. As a result of the investment announced today, the program will be offered province-wide and at no cost to businesses.  

About 60 percent of Ontario's small enterprises have a website, and only seven percent have an online payment solution. Digitally, Canadian businesses are estimated to be two years behind their U.S. counterparts.

Along with the Digital Main Street platform, the province is investing an additional $150 million in rural broadband which will help open the digital road for many Ontario small businesses.

In addition, the province has proposed a ban on commercial evictions to help businesses that have been impacted by restrictions due to COVID-19.

Here is a link: 

https://digitalmainstreet.ca/ontario/

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YOU CAN NOW HAVE A "SOCIAL CIRCLE". YOU CAN HUG IN YOUR CIRCLE. EVERYTHING YOU NEED TO KNOW ABOUT MAKING YOUR OWN SOCIAL CIRCLE, INCLUDING A STEP-BY-STEP GUIDE. YOU'VE ONLY GOT ONE SHOT AT THIS - CHOOSE WISELY!

As of today, welcome to the new normal of “social circles” in Ontario. 

You can now establish a family or social circle of no more than 10 people who can interact with one another without physical distancing. 

You can only be in 1 social circle.

Choose wisely.

You can hug non-household members, but only those in your social circle.

Everyone living in the same household is in a social circle.

People in the same social circle:

Why social circles are important

Close contact with people beyond your household is important to:

  • connect and be close with family and friends outside of your immediate household to reduce social isolation
  • support the mental health and wellbeing of Ontarians during the COVID-19 outbreak
  • allow some families to get additional support with child care, elder care and other personal needs
  • allow for more rapid contact tracing in the event of a case of COVID-19 in a social circle

We can trace and isolate COVID-19 quickly and effectively when you limit the number of people you come into close contact with.

Create a safe social circle

Follow these steps to create a safe circle.

Step 1: Start with your current circle: anyone you live with or who regularly comes into your household

Be sure to include anyone that would come into regular close contact with you and the people you live with.

This may be:

  • family members, including children
  • your roommates
  • another parent to your child(ren) that lives outside the home
  • a babysitter or caregiver

Considerations

If you add people outside of your household to your social circle, be sure to include anyone in their households as well. You may not see them often, but they would still be considered part of your current circle.

Remember that everyone in a household must be part of the same social circle.

Step 2: If under 10 people, you can add members to your social circle, including another household, family members or friends

As you add additional members, ask yourself:

  • Do they live with or come into regular close contact with anyone else? You may never see them, but they would still be considered part of your social circle.
  • What makes most sense for you or your household? That could include another household with similarly-aged children or family members that you want to spend more time with.

Considerations

If you live alone, you may want to start with family members or other close friends. People may, or may not, chose to participate in a social circle depending on their unique circumstance, and risk of developing complications from COVID-19, for example people:

  • over 70
  • with compromised immune systems
  • with underlying medical conditions

Remember that your social circle can include fewer than 10 people. It’s always best to start slow and safely add more members later.

Step 3: Get agreement from everyone that they will join the social circle

That means they agree to join only one circle, and physically distance with anyone outside the circle.

Essential workers can be part of a social circle, so long as the other members are aware of the risks and agree to them.

Step 4: Keep your social circle safe

To keep the people in your social circle safe:

  • continue to follow public health advice, including frequent hand washing and sneezing and coughing into a sleeve
  • continue to physically distance with anyone outside your circle by keeping two metres or six feet apart from them

If someone in your circle feels sick

They should immediately inform other members of the circle, self-isolate at home and not come into close contact with anyone, including other members of the circle.

They should also get tested.

Find an assessment centre to get tested for COVID-19.

Everyone else in the circle should closely monitor themselves for symptoms of COVID-19. If you believe you have been exposed to COVID-19 you should also be tested.

Step 5: Be true to your social circle

No one should be part of more than one circle.

Here is a link to a step-by-step guide to building your own social circle:

 

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VISITING OUR SENIORS - TODAY'S UPDATE BY THE GOVERNMENT FOR THE PROCEDURE TO VISIT OUR SENIORS IN CKL LONG-TERM CARE AND RETIREMENT FACILITIES. WHAT YOU NEED TO KNOW.

The Ontario government has provided more guidance and updated information about the gradual resumption of visits by family and friends of residents in long-term care homes, retirement homes and other residential care settings, beginning June 18, 2020. 

Specifically: 

• Long-term care homes will allow outdoor visits of one person per resident each week at a minimum. Retirement homes will resume indoor and outdoor visits in designated areas or resident suites when physical distancing can be maintained. Other residential care settings will be able to allow outdoor visits of two people at time.

• Visits will be subject to strict health and safety protocols, including requiring visitors to pass active screening every time they visit, confirming with staff that they have tested negative for COVID-19 within the previous two weeks, and complying with the infection prevention and control protocols. This includes bringing and wearing a face covering during visits."

The following conditions must be met before visitors can enter:

  • homes must not have a COVID-19 outbreak;
  • homes must have an established process for communicating visitor protocol and the associated safety procedures; and
  • homes must maintain the highest infection prevention and control standards.

Additional guidance released by the government is available here (long term care homes):

http://health.gov.on.ca/en/pro/programs/ltc/docs/covid-19/mltc_resuming_ltc_home_visits_20200611.pdf

and also here (retirement homes):

https://files.ontario.ca/msaa-reopening-retirement-homes-en-2020-06-11.pdf?_ga=2.226733725.1421261429.1591898249-1841326014.1586898239

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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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THE NEW 10-PERSON RULE - WHAT DOES THAT MEAN, EXACTLY? SAME OR DIFFERENT PEOPLE? INSIDE OR OUTSIDE? CAN I "DOUBLE-BUBBLE"? ANSWERS TO YOUR QUESTIONS FOR SAFELY GATHERING IN THE CKL.

The social gathering limit in the CKL has recently been increased from no more than five people, to no more than ten people. 

What does that mean, exactly? 

Only the same people all of the time? Can it be different people at any given time? Does this apply to my our house, or just outside? 

Few specifics were given by the Ontario government when it made this announcement recently.  

When you are with the 10 people do you need to be physically distancing?

Yes. when gathering with people who are from outside your household, you should still stay the recommended two metres apart. 

Is this applicable to indoors or outdoors?

Both. As long as a physical distance of two metres can be maintained with people who are not in your household, it does not matter where the gathering takes place. 

Does it always need to be the same people, or can the 10 people change all the time?

No, it doesn't need to be the same people. You can gather with a different group of 10 people, but you still need to physically distance.

How is this different than double bubbling?

The term 'double-bubble' or 'cohorting' refers to when two households make a pact to gather only with each other, and agree to stay distanced from everyone else.

This allows them to no longer have to physically distance from each other, theoretically, at least. 

However, double bubbling is not currently allowed in Ontario. 

Note, though, this new 10-person social gathering limit isn't restricted to two households and physical distancing measures are still required.   

It is important to remember that all other pandemic precautions must continue to be strictly followed, including proper hand-washing, following our local Health Unit's order about when to self-isolate, self-assessing on Ontario's updated COVID-19 Self Assessment Tool and wearing a proper, non-medical mask when physical distancing may be compromised.    

 

 

 

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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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NEED TO SEE YOUR DENTIST? Q & A - WHAT THAT MEANS FOR YOU, INCLUDING WHAT YOUR DENTIST MUST DO TO PROTECT YOUR SAFETY. PHONE IN SERVICES, ETC. WHAT YOU NEED TO KNOW TO GET THAT TOOTH ACHE FIXED UP FINALLY IN THE CKL.

Can someone please finally fix my tooth ache? Yes. 

Our dentists are required by their regulatory body and the Ontario government regulations to open in a staged approach.  

Dentists are now permitted to resume providing non-essential and elective care along with essential services, emergency and urgent care. 

If you visit your dentist, the Ontario Dental Association has indicated that you may have to take, or be subject to, certain measures, which may include patient screening, mask use and waiting outside the dental office to be called in for your appointment.

I think I have a dental emergency: what do I do?

Call your dentist. They will ask you for information about your situation, including whether you have any symptoms of COVID-19, and give you advice about next steps.  If you need to visit the office, they will let you know if they can help or will direct you to another dentist.

Do not go to a hospital emergency room for a dental problem at this time. 

Visiting my dentist: Is it safe?

Dentists must consider the best interests of their patients and communities at all times. The Royal College of Dental Surgeons of Ontario, our dentists' regulatory body, has developed a guidance document for dentists: COVID-19: Managing Infection Risks During In-Person Dental Care.

Dentists have to follow this guidance document along with information from the Chief Medical Officer of Health when re-opening their office and providing care. 

Here are the key areas of the guidance document provided to your dentist to help ensure your safety and manage infection risks during in-person dental care.

Infection Prevention and Control

  • Infection prevention and control in dentistry is vital for safe patient care.

  • All dentists providing dental treatment are required to ensure the College’s Standard on Infection Prevention and Control are met in their dental practice.

  • If you are concerned about your dental condition, your dentist will ask you questions over the telephone and determine if you need to be seen. If you need to be seen in the office, there are strict Infection Prevention and Control Standards that they must follow. 

Sterilization

  • Your dentist must ensure that the office and operatories are clean and disinfected between each patient appointment.

  • Your dentist must ensure magazines, toys, and any other non-essential items are removed from office, reception area, and operatories.

  • Dentists must tell their staff to clean their hands frequently, especially before and after contact with patients, after contact with high-touch surfaces or equipment, and after removing PPE.

Dentists’ Personal Protective Equipment (PPE)

  • Your dentist or oral health care worker should wear personal protective equipment such as gloves, protective eyewear, masks and protective clothing (if an aerosol-generating procedure is performed. PPE should always be used during your treatment.

  • Your dentist must ensure that they can meet the PPE and operatory requirements before they schedule an in-person appointment for assessment or treatment.

  • If your dentist can’t meet the PPE and operatory requirements, and you require emergency treatment, your dentist must refer you to another dentist.

Patient Screening and PPE

  • Before you go into the office, your dentist or their staff will ask you screening questions about to see if you have any COVID-19 symptoms.

  • Dentists must require all patients and visitors to wear a mask at all times while in the office except when they are being treated.

  • Patients who arrive without a mask given one by staff before entering the office. If they can’t provide a mask, they will schedule a new appointment.

Hand Hygiene

  • Patients will be required to perform hand hygiene (washing) using a 70-90% alcohol-based hand rub or soap and water, as soon as they enter the dental office.

  • Your dentist may ask you to disinfect with 70-90% alcohol-based hand rub before leaving the dental office.

  • Your dentist or oral health care worker must wash their hands with soap and running water.

Patient experiencing symptoms of COVID-19

  • Contact your doctor if you might have COVID-19.

  • Call Telehealth Ontario. The Telehealth number is 1-866-797-0000. Stay in self-isolation until you receive instructions otherwise from one of the above sources. 

  • Click here for the Ministry self-assessment link.

  • Patients should tell office dental staff if they experience any symptoms of COVID-19 within 14 days after their dental appointment.

I don’t want to go to my dentist’s office. Can my dentist just prescribe medications for me over the phone?

Your dentist will decide if over-the-counter medications (e.g. Advil, Tylenol) are recommended, if prescription medications are necessary, or if you need to be seen at the office. 

If you need a prescription, your dentist may send a prescription to the pharmacy directly, if appropriate.

During this pandemic, all dentists must continue to practice within the College's Guidelines on prescriptions for narcotics and/or opioids.

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CHILD CARE AND SUMMER DAY CAMPS NOW RE-OPENING IN THE CKL. PARENTS NEED TO GET BACK TO WORK. WHAT YOU NEED TO KNOW ON TODAY'S BIG ANNOUNCEMENT.

Today the Ontario government announced its plan to reopen child care centres across the province to support the next stage of the province's reopening framework.

The plan will require child care operators to follow strict health protocols to ensure the safety of child care staff and children.

As Ontario continues to implement its Framework for Reopening the Province, child care centres and home care providers across Ontario will be able to reopen with strict safety and operational requirements in place, similar to the safety guidelines required for emergency child care centres.

Centres will be required to adopt specific rules, including:

  • Cohorting ― putting children and staff in groups of 10 or less day over day;

  • COVID-19 response plan ― all child care settings will be required to have a plan in place if a child, parent or staff member/provider is exposed to COVID-19;

  • Screening ― all staff and children must be screened prior to entry to the child care setting.  Anyone feeling unwell must stay home;

  • Daily attendance records ― child care settings must keep daily records of all attendees in order to support contact tracing;

  • Cleaning ― child care settings must be thoroughly cleaned before opening and frequently thereafter;

  • No visitors ― only essential visitors are permitted entry into the child care setting;

  • Implementing drop-off and pick-up protocols in a way that facilitates physical distancing.

Effectively immediately, staff can re-enter child care facilities and begin preparation for reopening.

When these operators have met all the strict and stringent guidelines for reopening, they will be permitted to reopen.

The Ministry of Education has been working with the Ministry of Health and the Ministry of Labour, Training and Skills Development to develop these health and safety protocols.

They will enable the safe reopening of child care centres across the province and enhance safety through effective contact tracing.

This plan imposes strict requirements on operators, including mandatory training and reporting and support from the local medical officer of health before reopening.

Based on the advice of the Chief Medical Officer of Health and with strict health and safety protocols in place, the government is now enabling summer day camp programs across the province to reopen this summer. 

Strict health and safety guidelines were developed by the Ministry of Health in partnership with public health, the Ministry of Labour, Training and Skills Development, and municipalities, and distributed to local public health teams earlier this month.

At this time, overnight camps are not permitted to operate in the summer of 2020.

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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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LET THE GAMES BEGIN IN THE CKL! OUTDOOR SPORTS AND RECREATION RESUME - WHAT OUR PRIVATE CLUBS AND ASSOCIATIONS NEED TO KNOW TO RESUME THE FUN AND ENJOYMENT.

Phase 2 re-opening in the CKL includes outdoor-only sports and recreational facilities and training for outdoor team sports, with limits to enable physical distancing. 

We have both City-run and many private sporting associations and clubs throughout the CKL, including soccer, lacrosse, tennis and others. 

So, let the games begin, but only subject to the recommended health and safety guidelines and in accordance with COVID-19 common sense. 

Below is a great article that should be consider by any outdoor sporting association or private club, as well as any activity or sporting event presented by the municipality - a must read as we let the games resume in the CKL. 

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Game On: Reopening sports and recreation during COVID-19

Getting back to sports amidst an ongoing global pandemic is not an easy task. As the economy moves through the re-opening phase, there a number of best practices that sports and recreation organizations, clubs, leagues and facilities should consider to limit their exposure to lawsuits, whether they are for-profit or not for-profit. Below are top risk management considerations for sports organizations.

1. Know the current state of the law and follow it: There is guidance from all levels of government for individuals and businesses alike. Be aware there may be different (and sometimes conflicting) orders from the federal, provincial, regional and municipal levels of government. It is important to know current public health orders and occupancy limits. Make sure you consult any governing or oversight bodies for your particular sport or industry for guidance on how to run your activity safely. Following all guidance, regulations and public health recommendations with due diligence may be your best defence to a potential lawsuit.

2. Implement workplace policies and training: All organizations and employers should consider establishing clear policies or “best practices” to limit the spread of COVID-19, protect the safety of the public and their members, as well as to minimize occupiers’ liability as applicable. Training (and if necessary, pre-screening) for employees, coaches, administrators, volunteers, athletes, customers, guests, etc. must occur before reopening can take place. Below are some examples of actions to protect employees and customers:

  • Appropriately trained and equipped employees, volunteers and/or contracting parties;
  • Proper use of personal protective equipment (PPE) as necessary;
  • Strategic use of flyers and posters to advise employees, staff and others entering the workplace of any risks of within company premises; and
  • Proper handwashing and physical distancing techniques.

3. Document your efforts: Documentation of cleaning and hygiene protocols will be critical to ensure compliance with public health orders and will help to mitigate potential future claims. If your organization, club or business is going to use or revise waivers or indemnity agreements in the face of COVID-19 make sure to document who signed, how and when.

4. Enforcement of COVID-19 policies and best practices: Consider how you are going to enforce COVID-19 policies or best practices within your organization or business. Prepare and implement an enforcement protocol, providing of PPE, testing, etc. Are you going to require all employees, athletes and guests to wear PPE? If so, how will you provide it and pay for it? Will you conduct pre-screening of employees and/or customers? Are you going to hire security officers? Will you hand out trespass notices to individuals who are not complying with your policies and protocols? Have employees been made aware of the risks they face before they return to work? Are employees aware of their options and the protocols in place if they become ill or exposed to someone who is ill?

5. Funding and programming: Be aware of all forms of funding and subsidies available to your club or organization. These can be critical financial considerations for reopening in the 2020 season. Also consider whether your 2020 season needs to look a little different to comply with public health orders (i.e. is it safe to play your sport? Can training facilities be altered to make physical distancing possible? Should you consider alternate forms of programming or activities during this season? How will a shortened season affect your athletes? Will you offer online/digital programming?)

6. Be aware of privacy issues: Your business or organization should consider (and implement) guidance issued by government agencies, regulators and self-regulatory bodies to help manage COVID-19-related cybersecurity risks. Be aware of privacy concerns for employees, athletes and guests, particularly regarding COVID-19 testing and screening measures (e.g. health questionnaires, temperature testing, etc.).

7. Waiver/notices: Consider whether your organization, club or business is going to use or revise waivers or indemnity agreements in the face of COVID-19. Consider the use of additional warning signage as well as cleaning and hygiene protocols and information. Since transmission and contraction of COVID-19 is a novel area for liability, there is uncertainty as to how a court will treat a waiver in relation to liability for transmission of COVID-19. Keep in mind that waivers will apply differently to employees, contractors, customers and volunteers.

8. Rentals/indemnities: Review all rental agreements and permits for your club, organization or business and consider who will bear responsibility for defending any COVID-19 related claims. If you are renting space to other individuals or organizations, consider whether your future rental agreements require revisions to account for COVID-19 related transmission risks.

9. Insurance: Be aware of what kinds of claims and activities your liability insurance will and will not cover. Speak to your broker.

10. Hire a professional and use available resources: Don’t try to do everything yourself—consider hiring an occupational medicine or occupational health and safety specialist to assist you with the reopening process. Ensure your COVID-19 employment policies are drafted appropriately and in accordance with the applicable provincial legislation and public health guidance. Make sure to reach out to other online and local resources to ensure that you are reopening in compliance with the current state of affairs and to promote the safest possible environment for your athletes, volunteers, employees, guests and customers.

Most of all, be flexible and be aware that there will always be some level of risk. We are living in a dynamic environment with infection rates and testing abilities changing daily. Your club, organization or business needs to be ready to adapt to a rapidly changing world in the hopes that we can all get safely back to sports and play.

Credit: 

Borden Ladner Gervais LLP - Justine Blanchet, Erin Durant, Douglas Smith, Jake Cabott and Noah Bustein, published on Lexology.com on June 9, 2020  

 

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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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ONTARIO COVID SELF-ASSESSMENT TOOL NOW UPDATED - EXPANDED LIST OF SYMPTOMS - Q & A ON YOUR RESULTS. CHECK IT OUT.

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/

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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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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LONG TERM CARE IN THE CKL - YOU HAVE A LEGAL DUTY TO REPORT SUSPECTED ABUSE, MISTREATMENT OR OTHER WRONGDOINGS. WHAT YOU NEED TO KNOW......

Care in long-term care facilities throughout Ontario remains a serious issue and concern. 

While the Ontario government is making announcements about inquiries, it is important to remember that Ontario law already has in place a duty for everyone to immediately report to the government any suspected abuse, mistreatment or other misconduct in any long-term care facility. 

Specifically, Ontario's Long Term Care Act, 2007, at sub-section 24(1), imposes a positive duty on everyone to report any suspected abuse, misconduct or misappropriation in a long-term care facility. 

This section reads:  

"Reporting certain matters to Director

24 (1) A person who has reasonable grounds to suspect that any of the following has occurred or may occur shall immediately report the suspicion and the information upon which it is based to the Director:

1.  Improper or incompetent treatment or care of a resident that resulted in harm or a risk of harm to the resident.

2.  Abuse of a resident by anyone or neglect of a resident by the licensee or staff that resulted in harm or a risk of harm to the resident.

3.  Unlawful conduct that resulted in harm or a risk of harm to a resident.

4.  Misuse or misappropriation of a resident’s money.

5.  Misuse or misappropriation of funding provided to a licensee under this Act, the Local Health System Integration Act, 2006 or the Connecting Care Act, 2019. 2007, c. 8, ss. 24 (1), 195 (2); 2019, c. 5, Sched. 3, s. 12 (3).

Although everyone, by statute, has a positive duty to report any of these suspected wrongdoings, it is only a offence to fail to do so for certain people; namely, the facility itself, any person who works at or is responsible for operating the facility or anyone who provide services at the facility.  

Notably, the facility itself, under the same legislation, has a legal duty to ensure that any alleged, suspected or witnessed incident of abuse of a resident by anyone, neglect of a resident by the facility or staff is investigated properly and that “appropriate action” is taken in response. 

The investigative results generated by the facility and its responsive action must also be reported to the Ontario government.

Every facility must, by law, also have in a place a process and procedures for receiving, investigating and responding to complaints, including by residents.  

 

 

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

CHANGES TO THE ESA DUE TO COVID-19

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

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

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

Deemed to be on IDEL 

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

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

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

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

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

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

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

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

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

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

Reduced Hours/Wages

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

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

The usual ESA rules remain in place if:

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

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

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

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

Existing ESA Complaints

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

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

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

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

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

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

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

Important Notes

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

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

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

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

The Regulation is here: 

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

 

 

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

Health care

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

Eligible workplaces

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

Eligible workers

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

Long-term care

Eligible workplaces

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

Eligible workers

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

Retirement homes

Eligible workplaces

  • Licensed retirement homes

Eligible workers

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

Social services

Eligible workplaces

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

Eligible workers

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

Corrections

Eligible workplaces

  • Adult correctional facilities and youth justice facilities in Ontario

Eligible workers

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

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

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

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

Applications are due by July 13, 2020.

The government's announcement is here: 

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

Applications for this new program can be found here: 

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

 

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

Finally.........

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

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

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

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

 

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

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

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

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

Transitioning to remote work conditions involves some changes, legally.

HEALTH AND SAFETY ISSUES:

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

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

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

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

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

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

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

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

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

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

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

ONTARIO HUMAN RIGHTS CODE ISSUES:

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

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

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

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

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

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

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

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

REMEMBER BULLYING, INTIMIDATION AND HARASSMENT:

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

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

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

WORKPLACE POLICY:

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

  • the existing arrangements (during the pandemic);

  • when schools and child care centres reopen ultimately;

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

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

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

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

  • the meaning of "remote work";

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

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

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

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

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

  • feedback, performance reviews and evaluations;

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

  • work hours and schedule;

  • overtime issues and procedure;

  • emergency measures;

  • performance, work quality and professional standards and expectations;

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

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

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

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

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

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

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

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

Risks Associated with Operating a Business During COVID-19

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Communications and Training

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

Self-Reporting Requirements and Privacy Considerations

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

Sanitizing the Workplace

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

Personal Protective Equipment (PPE)

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

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

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

Entry and Exit Points

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

Physical Distancing of Work Stations

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

Gathering Areas

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

Frequent Touchpoints and Common Equipment

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

HVAC Systems

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

Third-Party Access

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

Changes to Employment Policies

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

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

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

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

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

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

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

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

Credit: 

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

 

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

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

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

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

Joining NICE is only a click away. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More Key Information About The CEBA: 

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

 

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

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

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

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

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

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

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

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

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

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

__________________

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

AFFIDAVIT BASED ON PERSONAL KNOWLEDGE

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

AFFIDAVIT BASED ON OTHER INFORMATION

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

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

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

_________________________

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

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

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

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

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

 

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

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

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

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

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

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

  • Lifting essential workplace limits on construction.

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

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

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

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

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

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

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

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

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

How it works

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

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

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

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

If the other parent or caregiver does not respond

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

This will only happen if:

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

  • your child support case is not currently before the court

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

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

Who can use the service

You can set up or update child support online if:

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

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

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

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

You cannot set up or update child support online if:

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

  • any children are over 17.5 years old or married

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

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

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

    • is self-employed

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

    • earns income in cash

    • is a partner or majority shareholder of a business

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

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

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

Required documents

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

  • your Social Insurance Number or Temporary Tax Number

  • a current mailing address for the other parent or caregiver

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

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

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

  • your three most recent pay stubs, or

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

Start using the service

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

Set up or update child support

Cost

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

Accepted forms of payment

Visa, Mastercard or Interac® Online

No refunds for inaccurate information

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

Fee waiver

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

Consulting a lawyer

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

Contact the Child Support Service

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

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

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

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

Through the new RRRF, there is available: 

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

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

For assistance: 1-866-593-5055.

Qualify and apply here: 

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

 

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

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

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

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

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

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

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

Businesses involved in active insolvency proceedings are ineligible. 

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

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

Stage 1 (in progress)

Stage 2

Stage 3

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

 

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

 

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

BUSINESSES GRADUALLY REOPENING IN PHASE ONE

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

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

  • lawn care and landscaping;

  • additional essential construction projects that include:

    • shipping and logistics;

    • broadband, telecommunications, and digital infrastructure;

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

    • municipal projects;

    • colleges and universities;

    • childcare centres;

    • schools; and

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

  • automatic and self-serve car washes;

  • auto dealerships, open by appointment only;

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

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

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

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

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

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

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

“STRICT” HEALTH AND SAFETY GUIDELINES

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

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

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

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

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

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

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

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

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

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

NEXT STEPS FOR ELIGIBLE BUSINESSES

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

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

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

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

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

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

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

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

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

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

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

  • compliance with health and safety protocols; and

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We should all raise our voices against stigma and discrimination

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

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

We are all in this together.

 

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CKL BUSINESSES - AS YOU PIVOT AND DO MORE ONLINE , PROTECT YOURSELF FROM YOUR EMPLOYEES' BREACHING PRIVACY OR DATA - WHAT YOU NEED TO DO

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

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

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

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

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

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

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

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

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

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

The plan should include:

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

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

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

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

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

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

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

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

Protecting yourself and your co-workers:

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

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

Physical distancing (two meters):

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

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

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

Workplace sanitation:

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

Here are some tips for employers to use:

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

Adjust onsite and production schedules:

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

Here are some tips for employers to follow:

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

Track your workforce:

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

Reporting illness:

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

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

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

CKL Health Unit Order:

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

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

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

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

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

Workers with COVID-19:

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

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

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

Getting information on infection prevention and control:

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

Share information:

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

Post your policies:

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

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

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

Ministry of Labour, Training and Skills Development reporting requirements:

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

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

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

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

The goals of this temporary pandemic pay are to:

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

How much you can get

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

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

Pandemic pay on hourly wages

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

All eligible workers will receive this amount automatically.

Monthly lump sum payments

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

The designated 4-week periods are:

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

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

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

How to get paid

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

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

For employers

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

Who is eligible

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

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

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

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

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

Health care

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

Eligible workplaces

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

Eligible workers

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

Long-term care

Eligible workplaces

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

Eligible workers

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

Retirement homes

Eligible workplaces

  • Licensed retirement homes

Eligible workers

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

Social services

Eligible workplaces

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

Eligible workers

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

Corrections

Eligible workplaces

  • Adult correctional facilities and youth justice facilities in Ontario

Eligible workers

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

Base salaries, benefits and pensions

The temporary hourly pandemic pay and lump sum payments:

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

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

Vacation and leaves

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

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

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

Union dues

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IDENTIFY HIGH RISK EMPLOYEES

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

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

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

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

EMPLOYEES QUALIFIED FOR A TEMPORARY LEAVE OF ABSENCE

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

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

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

REFUSAL TO RETURN TO WORK DUE TO VIRUS CONCERNS

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

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

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

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

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

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

  • cashiers

  • chefs

  • dishwashers

  • administrators

  • drive-thru operators

  • maintenance staff

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

Protecting yourself and your co-workers:

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

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

  • Sanitize often, between each transaction if possible.

  • Wash or sanitize hands after making or receiving deliveries.

  • Sneeze and cough into your sleeve.

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

  • Avoid touching your eyes, nose or mouth.

  • Avoid contact with people who are sick.

  • Stay home if you are sick.

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

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

  • Wash your clothes as soon as you get home.

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

Physical distancing (two meters):

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

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

  • Minimize contact with customers.

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

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

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

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

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

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

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

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

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

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

  • Hold meetings in an outside or large space.

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

Workplace sanitation:

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

Here are some tips for employers to use:

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

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

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

  • Include handwashing before breaks and at shift changes.

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

  • Clean washroom facilities.

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

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

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

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

Adjust onsite and production schedules:

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

Here are some tips for employers to follow:

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

  • Consider job rotation.

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

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

  • Ensure sanitation of sites and workspaces.

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

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

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

Track your workforce:

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

Reporting illness:

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

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

  • Telehealth: 1-866-797-0000

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

Workers with COVID-19:

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

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

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

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

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

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

Getting information on infection prevention and control:

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

Share information:

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

Post your policies:

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

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

  • the sanitization of the workplace

  • how workers report illnesses

  • how to ensure physical distancing

  • how work will be scheduled

  • screening measures

Ministry of Labour, Training and Skills Development reporting requirements:

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

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

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

  • a trade union (if applicable)

 

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

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

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

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

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

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

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

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

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

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

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

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

Only “essential” businesses may remain open.

DEFINITION OF “ESSENTIAL” BUSINESSES:

“Essential” businesses currently are:

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

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

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

PENALTIES FOR FAILING TO COMPLY:

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

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

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

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

CHALLENGING A FINE FOR NON-COMPLIANCE:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[7] third-party civil penalties.

Continue reading……….

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

Background: Uncertainties Abound

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

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

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

Consequences of Errors

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

Repayment of Subsidy and Interest

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

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

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

Monetary and Criminal Penalties for False Statements

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

Civil Liability

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

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

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

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

Criminal Liability

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

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

Director Liability for Employers that are Corporations 

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

Monetary Penalty for Artificial Transactions 

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

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

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

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

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

Third-Party Civil Penalties 

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

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

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

Conclusion

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

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

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

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

 

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

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

No one knows how we’ll emerge from this.

Will corporate culture change?

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

Will we travel at all for work in the future.

No one knows.

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

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

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

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

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

May 1 - The Ontario government is allowing certain businesses and workplaces to reopen, provided they comply with strict public health measures and operate safely during the COVID-19 outbreak.

Those permitted to start up include seasonal businesses and some essential construction projects.

For this purpose, the government, in partnership with Ontario's health and safety associations, has developed more than 60 guidelines in response to COVID-19.

These sector-specific measures will help employers prepare their workplaces so they can be reopened safely and ensure workers, customers and the general public are protected.

By following the proper health and safety guidelines, these businesses will be permitted to begin operations on Monday, May 4 at 12:01 a.m.:

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

Although certain businesses are being permitted to reopen, it is critical that people continue to stay home, practise physical distancing and only go out for essential reasons, to pick up groceries, prescriptions or to keep a medical appointment.

On April 27, the government released A Framework for Reopening our Province, which outlines the criteria Ontario's Chief Medical Officer of Health and health experts are using to advise the government on the loosening of emergency measures, as well as guiding principles for the safe, gradual reopening of businesses, services and public spaces.

For more information from us about the new Health and Safety Association Guidance Documents for Workplaces During the COVID-19 Outbreak, go here:

http://wardlegal.ca/31587872329974

and here:

https://news.ontario.ca/opo/en/2020/04/health-and-safety-association-guidance-documents-for-workplaces-during-the-covid-19-outbreak.html?_ga=2.41393255.457691440.1588173943-912132074.1553015509

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CKL BUSINESSES - UPDATED CHEAT SHEET FOR THE NEW COMMERCIAL RENT SUBSIDY PROGRAM - WHAT YOU NEED TO KNOW

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

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

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

  • Available for April, May and June

  • Landlord must apply

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

  • Government loan is forgiven if landlord complies with program requirements

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

  • Available to non-profits, etc.

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

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

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CKL BUSINESSES - NEW GOVERNMENT SAFETY RULES RELEASED TODAY FOR GRADUAL RE-OPENING - DOWNLOAD YOUR POSTER - WHAT YOU NEED TO KNOW

 

The Ontario government today released new sector-specific safety guidelines to business that will reopen during the pandemic.

They provide direction to those working in manufacturing, food manufacturing and processing, restaurant and food service, and the agricultural sector. These measures build on more than 60 guidelines developed by Ontario's health and safety associations in response to COVID-19 for various sectors such as retail, health care, construction, transportation, police services, firefighters, and transit employees. 

These new sector-specific guidelines feature recommended actions employers can begin to plan for as they prepare to adapt to the new reality during COVID-19, including:

  • Ways to ensure appropriate physical distancing, like eliminating pay-at-the-door options, holding team meetings outdoors, staggering shift times and using ground markings and barriers to manage traffic flow.

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

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

The government is also issuing posters to promote a variety of useful safety tips. The posters offer helpful advice on physical distancing and sanitation. They are downloadable from the Ontario.ca website so employers can print and post them in their workplaces.

Starting this week, 58 new inspectors will join the hundreds of existing provincial labour inspectors on the ground. The inspectors, which include workers from the Technical Standards and Safety Authority (TSSA) and the Ontario College of Trades (OCOT), will be tasked with communicating COVID-19 safety guidelines to essential workplaces or enforcing emergency measures, including physical distancing and the closure of non-essential businesses.

Link to the new guidelines: 

https://www.ontario.ca/page/resources-prevent-covid-19-workplace?_ga=2.171714016.1787025216.1588283825-1949137880.1584645365

 

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

WORK REFUSALS BY EMPLOYEES

  • Must be a “danger” to returning to work
  • Employers must fulfill the statutory duty to take any reasonable steps to ensure health and safety in the workplace – More information here: http://wardlegal.ca/31587872329926
  • All governmental orders and health officials’ recommendations should be followed in the workplace – More information here: http://wardlegal.ca/31587872329932
  • Consider thermal testing for employees – must also be mindful of balancing employees’ privacy – More information here: http://wardlegal.ca/31586368607052
  • If a dispute, Ontario Ministry of Labour must be contacted – a binding decision will be made
  • Employees may qualify for a job-protected, unpaid leave of absence under the Employment Standard Act – More information here: http://wardlegal.ca/31587872329926
  • New Infectious disease leave of absence is broad and includes need to care for a dependent, like a child during school closures  
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THE COURT'S RECENT STERN WARNING TO SEPARATED PARENTS - ACT REASONABLY DURING THE PANDEMIC, OR FACE THE CONSEQUENCES SOON

A stern warning recently by the Family Court to separated parents who act unreasonably, uncooperatively or who exercise self-help: 

"So perhaps I can go one step further.  Perhaps I can give high conflict parents a bit of a warning.

 

a.      Just because a Triage judge decides an issue isn’t urgent, it doesn’t mean the issue isn’t important.  It simply means we have to prioritize which issues we currently have the resources to deal with.

b.      The suspension of most court activities during the COVID-19 crisis means that – temporarily -- separated parents are largely going to be on “the honour system.”  

c.      We’re counting on parents to be fair and helpful with one another.  To rise to the challenge and act in good faith.

d.      Because now more than ever, children need parents to be mature, cooperative, and mutually respectful. In these times of unspeakable stress and anxiety, children need emotional reassurance from both parents that everything is going to be okay.

e.      How parents conduct themselves during this time of crisis will speak volumes about parental insight and trustworthiness.

f.      Your reputation will outlast COVID-19.

g.      So please don’t try to take advantage of the current situation.

h.      In the long run, self-help will turn out to be a big mistake."

Case: 

McNeil v. McGuinness, 2020 CarswellOnt 4833 (Ont. S.C.J.) 

 

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CKL UPDATE - THE CERB AND EI - YOUR UPDATED CHEAT SHEET - WHAT YOU NEED TO KNOW

CANADA EMERGENCY RESPONSE BENEFIT (CERB)

  • $500 weekly – maximum of 16 weeks

  • Retroactive to Mar. 15, 2020

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

  • Must be 15 and Canadian resident

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

  • 7, 4-week eligibility cycles or claiming periods

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

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

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

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

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

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

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

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

  • Not EI

  • Can collect CERB without affecting future EI benefit eligibility

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

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

Examples:

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

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

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

EMPLOYMENT INSURANCE (EI)

  • Can continue to work/earn income without disqualifying for EI

  • Can keep up to $0.50 of EI for each dollar earned – maximum is 90% of weekly insurable earnings used to calculate EI benefit

  • If more, EI deducted dollar-for-dollar against other income source

  • Means employers can gradually recall employees (including part-time) without disqualifying EI benefits for those recalled

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CKL EMPLOYERS - TIPS FOR RECALLING EMPLOYEES FROM LAY OFFS - WHAT YOU NEED TO KNOW

Employers in the City of Kawartha Lakes, tips to you for recalling employees from lay offs during the pandemic:  

  • Must recall before end of 13-week statutory period (within rolling 20 week period); maximum is 35 weeks during any 52-week period if certain conditions apply – otherwise deemed termination – More information about lay off rules and requirements is here: http://wardlegal.ca/31586368607034
  • Terms of recall must comply with the requirements of the Employment Standards Act, at a minimum
  • Check employment agreement, workplace policy or collective bargaining agreement, if any – must provide “greater right or benefit” compared to Employment Standards Act
  • No formal notice requirement/procedure, unless in an employment agreement, workplace policy or collective bargaining agreement, if any
  • If not recalled by statutory deadline, statutory entitlements triggered for most employees (but check for exemptions to statutory entitlement – construction workers, etc.)
  • May also trigger common law pay in lieu of notice (i.e., severance)
  • Employees must return, if recalled, within a reasonable period of time, or forfeit statutory entitlements (termination and severance pay, etc.) [Employment Standards Act Policy and Interpretation Manual, ss. 2(1), para. 7]
  • Employer must prove failure to return after recall – must be clear, written notice of recall and employee could read and understand the recall notice
  • Avoid verbal recalls – do it in writing
  • Avoid recalling for a short period of time to avoid paying statutory entitlements [Highland Cove Marina v. Van Velden and Babcock, Dec. 22, 1983, ESC 1531, Sheppard)
  • Must return to pre-lay off position – must be confirmed in the written notice of recall
  • Return to work notice should identify those employees being recalled, dates of recall and intention to provide a work schedule to those recalled
  • If staggering recalls, should recall in reverse order of lay offs (i.e., those laid off first will be recalled first), if possible
  • Return to work notice should confirm the recall is on the same terms of employ as pre-lay off
  • If any change to pay, work hours, etc. to be applied, must specify that in the written recall notice (and confirm intention to return to pre-lay off terms as soon as possible)
  • Return to work notice should explain further lay offs may be required, depending on developments and, if so, terms of initial lay off will apply
  • Return to work notice should remind recalled employees to notify the federal government (i.e., end the CERB, EI, etc.) to avoid double-dipping
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RESTARTING THE CKL ECONOMY - UPDATE - WHEN? HOW? WHAT YOU NEED TO KNOW

The federal and Ontario governments have agreed to common principles to gradually restart our economy:  

  1. taking a science and evidence-based approach to decision-making;
  2. coordination and collaboration between all jurisdictions;
  3. continued accountability and transparency of all governments; and
  4. flexibility and proportionality as information changes over time.

They jointly agreed on these mandatory criteria and measures to restart: 

  • COVID-19 transmission is controlled, so new cases are contained at a level that our health care system can manage;
  • sufficient public health capacity is in place to test, trace, isolate, and control the spread of the virus;
  • expanded health care capacity exists to support all needs, including COVID-19 and non-COVID-19 patients;
  • supports are in place for vulnerable groups, communities, and key populations. This includes the protection of seniors, residents of group living facilities, workers in close quarters, homeless people,  Indigenous peoples and those living in remote locations, health care workers and other essential workers, and inmates;
  • support and monitoring of workplace protocols are in place to keep Canadians safe at their jobs, and prevent the introduction and spread of COVID-19;
  • restrictions on non-essential travel are eased and managed in a coordinated manner; and
  • communities are supported in managing local disease activity, including in child care, schools, and public transportation, and industry and economic sectors are engaged to support the health of Canadians, reduce viral activity, and protect the economy as it restarts.
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CKL EMPLOYERS - YOUR UPDATED CHEAT SHEET FOR THE NEW 75% WAGE SUBSIDY - WHAT YOU NEED TO KNOW TODAY

Employers in the City of Kawartha Lakes, your updated Cheat Sheet of nee-to-know tips for the emergency wage subsidy and taking advantage of this benefit: 

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

Every employer in the City of Kawartha Lakes has a duty to take all reasonable steps to ensure the health and safety of employees, pursuant to Ontario’s Occupational Health and Safety Act.

According to Inspectors from the Ministry of Labour currently, generally in terms of COVID-19, this means:

  • maintaining physical distancing all times in the workplace;
  • ensuring adequate sanitation and hand-washing facilities;
  • performing adequate cleaning and disinfecting throughout the workplace;  
  • practicing all other federally, provincially and municipally ordered and recommended health advisory containment steps and precautions;
  • respecting the privacy of employees as much as possible in the circumstances, particularly if seeking information or conducting any screening; and  
  • using reasonable and best efforts to refuse entry into your workplace of anyone who:
  • is identified as a person diagnosed with COVID-19;
  • has the signs and symptoms of COVID-19, has been tested for COVID-19 and is awaiting the results of their test;
  • for whom your employer has reasonable grounds to believe that person has symptoms of COVID-19; and/or
  • has close contact with another person identified in the above points,

These relate to COVID-19, but there may be other health and safety obligations for employers, depending on the nature of the workplace and the operations. 

For more information from us about monitoring and screening COVID-19 in the workplace, go here: http://wardlegal.ca/31586368607052

For additional information, contact the Ontario Ministry of Labour, Training and Skills Development here: https://www.ontario.ca/page/ministry-labour-training-skills-development

 

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CKL - OUR NEW "REOPENING" PLAN - WHAT YOU NEED TO KNOW

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

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

STAGE 1:

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

STAGE 2:

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

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

STAGE 3

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

 

 

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AS THE ECONOMY OPENS UP, IF I AM RECALLED TO MY JOB, CAN I REFUSE? WILL I BE FIRED OR SUSPENDED? WHAT IS MY RIGHT TO REFUSE TO GO TO WORK BECAUSE OF THE VIRUS?

If I am an essential worker (or permitted to work at my job), can I refuse to go to work because I am concerned about getting the virus? If so, can I collect the CERB?

If your employer is:

  • maintaining physical distancing in the workplace;  
  • practicing all federally, provincially and municipally ordered and recommended health advisory containment steps, including providing adequate hand-washing facilities; and
  • ensuring not to allow entry into your workplace of anyone who:
  • is identified as a person diagnosed with COVID-19
  • has the signs and symptoms of COVID-19, has been tested for COVID-19 and is awaiting the results of their test
  • for whom your employer has reasonable grounds to believe that person has symptoms of COVID-19,  or
  • has close contact with another person identified in the above points,

then if you refuse to attend your job, but you do not qualify for an authorized, job-protected, unpaid leave of absence under Ontario’s Employment Standards Act, you run the risk of being suspended, possibly without pay, and possibly terminated for non-attendance, leaving you with no severance pay, at law.

WILL I GET THE CERB?

If you have stopped working because of COVID-19, the Canada Emergency Response Benefit (CERB) may provide you with temporary income support. The CERB provides $500 a week for up to 16 weeks.

The Benefit is available to workers:

  • residing in Canada, who are at least 15 years old;
  • who have stopped working because of reasons related to COVID-19 or are eligible for Employment Insurance regular or sickness benefits or have exhausted their Employment Insurance regular benefits or Employment Insurance fishing benefits between December 29, 2019 and October 3, 2020;
  • who had employment and/or self-employment income of at least $5,000 in 2019 or in the 12 months prior to the date of their application; and,
  • who have not quit their job voluntarily.

When submitting your first claim, you cannot have earned more than $1,000 in employment and/or self-employment income for 14 or more consecutive days within the four-week benefit period of your claim.

When submitting subsequent claims, you cannot have earned more than $1,000 in employment and/or self-employment income for the entire four-week benefit period of your new claim.

WHAT LEAVES OF ABSENCE COULD I QUALIFY FOR TO AVOID RETURNING TO WORK?

If your employer is regulated by Ontario, as most are (except for banks, communications, transportation, etc.), you must qualify for one of Ontario’s legislatively approved leaves for a job-protected, but unpaid, leave of absence, such as the new Infectious Disease emergency leave. 

Employees have the right to take unpaid, job-protected infectious disease emergency leave if they are not performing the duties of their position because of specified reasons related to a designated infectious disease. This leave is available to all employees who are covered by Ontario’s Employment Standards Act.

Employers cannot threaten, fire or penalize an employee in any other way because the employee took or plans on taking an infectious disease emergency leave.

The only disease for which infectious disease emergency leave may be taken at this time is COVID-19. Although the Employment Standards Act was amended to include infectious disease emergency leave on March 19, 2020, the leave entitlements for COVID-19 are retroactive to January 25, 2020. 

HOW DO YOU QUALIFY FOR THE INFECTIOUS DISEASE LEAVE?

Employees can take infectious disease emergency leave if they will not be performing the duties of their position because of any of the following reasons:

  1. the employee is under individual medical investigation, supervision or treatment related to a designated infectious disease.The medical investigation, supervision or treatment can be in Ontario or in another province, territory or country;
  2. the employee is following a COVID-19 related order issued under section 22 or 35 of Ontario’s Health Promotion and Protection Act;
  3. the employee is in quarantine, isolation (voluntary or involuntary), or is subject to a control measure, and the quarantine, isolation or control measure was implemented as a result of information or directions related to a designated infectious disease that was issued by:
    1. a public health official. This means a public health official of the Government of Canada or any of the following people within the meaning of the Ontario Health Protection and Promotion Act:
      • the Chief Medical Officer of Health or Associate Chief Medical Officer of Health;
      • a medical officer of health or an associate medical officer of health; and/or
      • an employee of a board of health;
    2. someone who is qualified to practice as a physician or a nurse either in Ontario or in the jurisdiction where the employee is located (for example, another province, territory or another country) and who has provided care or treatment to the employee, whether or not the care or treatment was related to the designated infectious disease (such as an employee who has an immune deficiency was told by his physician to self-isolate and not go to work during the infectious disease outbreak);  
    3. Telehealth Ontario;
    4. the Government of Ontario or Canada;
    5. a municipal council in Ontario; and/or
    6. a board of health.

The information or direction may be issued:

  • to the public (in whole or in part);
  • to one or more people; and
  • through any means, including print, electronic or broadcast (for example, television or radio)
  1. the employee is under a direction given by his or her employer in response to the employer’s concern that the employee might expose other individuals in the workplace to a designated infectious disease.

For example, this would include the employer directing the employee to stay at home for a period of time if the employee has recently travelled internationally and the employer is concerned the employee may expose others in the workplace to a designated infectious disease;

  1. the employee is providing care or support to any of these individuals because of a matter related to a designated infectious disease:
    • the employee’s spouse (of the same or opposite sex, whether or not married)
    • a parent, step-parent or foster parent of the employee or the employee’s spouse
    • a child, step-child or foster child of the employee or the employee’s spouse
    • a child who is under legal guardianship of the employee or the employee’s spouse 
    • a brother, step-brother, sister or step-sister of the employee
    • a grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse
    • a brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee
    • a son-in-law or daughter-in-law of the employee or the employee’s spouse
    • an uncle or aunt of the employee or the employee’s spouse
    • a nephew or niece of the employee or the employee’s spouse
    • the spouse of the employee’s grandchild, uncle, aunt, nephew or niece
    • a person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met (currently there are no prescribed conditions)
    • any individual prescribed as a family member for the purposes of this section (currently, there are no additional prescribed family members)

This includes an employee taking leave to care for their child whose school or day care was closed because of a designated infectious disease (in this case, COVID-19).

Examples include:

  • an employee who is providing care to an aunt who is sick with COVID-19
  • a babysitter who is in quarantine or isolation because of a designated infectious disease, or is sick because of it
  • a summer camp that the employee’s child was scheduled to attend closed down to help prevent the spread of a designated infectious disease
  • an employee’s 10-year-old brother, who was visiting the employee from another city without his parents, was unable to return home because of travel restrictions imposed to prevent the spread of a designated infectious disease

The employee can be providing the care or support in Ontario or in another province, territory or country.

  1. The employee is directly affected by travel restrictions related to a designated infectious disease and, under the circumstances, cannot be reasonably expected to travel back to Ontario.

For example, this would include an employee who is on a cruise ship that is not permitted to dock in any country because of the concern that passengers are infected by a designated infectious disease.

There may be some situations where an employee is affected by travel restrictions (for example where there are no international commercial airline flights available) but the employee has other options available to travel back to Ontario. This condition will be met if it would not be reasonable to expect the employee to use alternative options.

What is reasonable will depend on the circumstances. For example, an employee was vacationing in Mexico City when Canada banned all flights from Mexico for two weeks. The employee could rent a car or take a series of buses and trains to return to Ontario but that would not be a reasonable expectation in the circumstances.

This provision applies only where the employee is directly affected by the travel restrictions. In other words, it applies only where the employees travel back to Ontario is affected.

This provision applies only when the employee is caught by travel restrictions while outside of Ontario.

WHAT ARE MY RIGHTS DURING MY LEAVE?  

Employees who take infectious disease emergency leave are generally entitled to the same rights as employees who take pregnancy or parental leave. For example, employers cannot threaten, fire or penalize in any way an employee who takes or plans on taking an infectious disease emergency leave.

WHAT OTHER LEAVES OF ABSENCE AVAILABLE TO ME?

There are different types of leaves under the Employment Standards Act, including:

  • sick leave
  • family responsibility leave
  • family caregiver leave
  • family medical leave
  • critical illness leave
  • bereavement leave
  • declared emergency leave

An employee may be entitled to more than one leave for the same event. Each leave is separate and the right to each leave is independent of any right an employee may have to the other leave(s).

The purposes of the leaves, their length and eligibility criteria are different.

 

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NEW PANDEMIC TOP-UP TO FRONT LINE WORKERS - ADDITIONAL $4 HOURLY + $250 TO WORK LONGER HOURS

To provide additional support for front line workers fighting COVID-19, the Ontario government is now providing a temporary pandemic pay of $4/hour worked on top of their regular wages. In addition, the government will be providing monthly lump sum payments of $250 for four months to eligible frontline workers who work over 100 hours per month. The pandemic pay will be effective for 16 weeks, from April 24, 2020 until August 13, 2020, and is expected to support over 350,000 frontline workers.

Eligible workplaces and workers for pandemic pay

The pandemic pay is designed to support employees on the frontlines of COVID-19 and does not apply to management. Eligible workplaces and workers include:

Health care and long-term care

Eligible workplaces

  • Acute hospitals
  • Long-term care homes (including private, municipal and not-for-profit homes)
  • Licensed retirement homes
  • Home and community care

Eligible workers

  • Personal support workers
  • Registered nurses
  • Registered practical nurses
  • Nurse practitioners
  • Attendant care workers
  • Auxiliary staff, including:
    •  Porters, cook, custodian, housekeeping, laundry facilities and other key workers.
  • Developmental services workers
  • Mental health and addictions workers

Social services

Eligible workplaces

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

Eligible workers

  • Direct support workers (e.g. developmental service workers, staff in licensed children's residential sites, in-take/outreach workers)
  • Clinical staff
  • Housekeeping staff
  • Security staff
  • Administration personnel
  • Maintenance staff
  • Food service workers
  • Nursing staff

Corrections

Eligible workplaces

  • Adult correctional facilities and youth justice facilities in Ontario

Eligible workers

  • Correctional officers
  • Youth services officers
  • Nurses
  • Healthcare staff
  • Social workers
  • Food service
  • Maintenance staff
  • Programming personnel
  • Administration personnel
  • Institutional liaison officers
  • TRILCOR personnel
  • Native inmate liaison officers
  • Chaplains
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CKL BUSINESSES - WHAT DO YOU DO IF YOUR LANDLORD IS UNREASONABLE AND REFUSES TO APPLY FOR THE NEW COMMERCIAL RENT LOAN? YOUR TWELVE-STEP ANSWER......

What if your commercial landlord is inflexible and uncooperative and refuses to participate in the new Canada Emergency Commercial Rent Assistance (CECRA) program, reducing your monthly commercial rent in April, May and June, 2020 to a maximum of 25%?

CKL businesses leasing commercial property from an inflexible landlord, and which cannot afford to pay ongoing commercial rent, should consider taking the following steps:

[1]    in writing, promptly request your landlord to apply for the new Canada Emergency Commercial Rent Assistance (CECRA) and to relieve you from 75% your monthly rent for April, May and June, 2020;

[2]    apply for the expanded Canada Emergency Response Benefit, including if you are self-employed, or you paid yourself dividends from your incorporated small business;

[3]    if your landlord refuses to participate in the CECRA, in writing, request your landlord to act co-operatively, reasonably and flexibly, particularly if you are a non-essential business, as specifically directed by both the federal and provincial governments;

[4]    in writing, request your landlord to agree to a ninety-day, interest-free rental deferral, with the possibility of further extension depending on the ongoing status of the virus;

[5]    if your landlord remains inflexible and it strictly intends to enforce the lease, consider having your qualified lawyer send a letter affirming your position and threatening legal action against the landlord, including the payment of costs;

[6]    review your lease carefully for:

(a) a force majeure clause;

(b) health emergency clauses;

(c) liability protection clauses,

and any other clauses that may allow you to argue frustration of the commercial lease and, therefore, absolve you of liability for your obligations, including rental payment;

[7]    speak to your insurance broker about the availability of business interruption and any other available insurance that may assist you, including to pay rent, as explained above – consider providing your contact information for the ongoing Ontario class action lawsuit against insurers who have denied this coverage during COVID-19;

[8]   if necessary, seek assistance from your lawyer to apply for relief from forfeiture, subject to any further governmental steps that may be taken in the near future to assist you, or the landlord;

[9]   if your landlord sues you for any damages, speak to your qualified lawyer about defending the claim based on frustration of contract;

[10]   contact your M.P.P. and request that the Ontario government immediately and legislatively, or by other suitable measure, ban the forfeiture of commercial leases from March 15, 2020 until June 30, 2020 (or longer, if necessary, due to the pandemic);

[11] ensure all of your dealings with your landlord are in writing or, alternatively, make detailed notes about your verbal dealings with your landlord (i.e., potential evidence); and

[12] continue to monitor the expanding financial economic responses plans by both the federal and provincial governments, which will continue to change and expand during the pandemic.

For more information from us about the step-by-step guide to assist you, go here:

http://wardlegal.ca/31586368607060

 
 
 
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CKL BUSINESSES AND LANDLORDS - THE NEW DEAL FOR RENT DURING THE PANDEMIC - SUBSTANTIAL REDUCTION TO ONLY 25% - WHAT YOU NEED TO KNOW

The federal Government announced today it will in partnership with the Ontario government implement the Canada Emergency Commercial Rent Assistance (“CECRA”) for small businesses in the City of Kawartha Lakes: 

  • commercial rent is reduced by 75% for small businesses affected by COVID-19 [i.e., businesses paying less than $50,000 per month in rent and who have temporarily ceased operations or have experienced at least a 70% revenue reduction];
  • eligible landlord applies for forgivable loan(s) to cover 50% of three monthly rent payments - April, May and June;  
  • landlord loans will be forgiven if the mortgaged property owner agrees to reduce the rent by at least 75% for these three months under a “rent forgiveness agreement”, which will include a term not to evict the tenant while the agreement is in place;  
  • the small business pays the remainder, up to 25% of the rent; and
  • also available to local non-profit and charitable organizations.
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LEGAL LIABILITY FOR ENGAGING IN ASIAN-BASED DISCRIMINATION - THERE IS A LEGAL CONSEQUENCE TO DOING SO.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We should all raise our voices against stigma and discrimination

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

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

We are all in this together.

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EXTENSIVE NEW FINANCIAL AID TO STUDENTS TODAY - YOU'LL NEED A CALCULATOR TO DECIDE WHICH WAY TO GO - WHAT YOU NEED TO KNOW.

April 22 – The federal Government announced new financial aid to students – they can now claim a new Canada Emergency Student Benefit (“CESB”).

Under the CESB, eligible post-secondary students could receive $1,250 monthly from May to August. If that student is also taking care of someone else or has a disability, that amount increases to $1,750 monthly.

College and university students currently in school, planning to start in September, or who graduated in December 2019 are eligible.

In addition, working students earning less than $1,000 per month can also apply.

The new benefit will require legislation, but the federal Government promised to promptly roll this out. 

In addition to the CESB, the federal Government also announced more financial assistance to young people:

  •  creating an additional 76,000 jobs for young people in certain sectors, or that are on the frontlines of this pandemic;
  •  investing more than $291 million to extend scholarships, fellowships, and grants for three or four months;
  •  launching a new Canada Student Service Grant of between $1,000 and $5,000 for students volunteering in the COVID-19 fight; and
  • doubling the student grants that the government gives out for the 2020-21 school year.

This new benefit is intended to address the ‘gap’ for students who did not qualify for the CERB, due to the condition that they must have reported $5,000 in income in the past twelve months.

Earlier, the federal government announced temporary changes to the Canada Summer Jobs program to help students find work in a largely locked-down country once their summer begins.

Now, employers who hire summer students can apply for a subsidy of up to 100 per cent of the Ontario minimum wage. This is for the age range of 15 to 30.

For many students and employers in the City of Kawartha Lakes, this raises new questions. For example, financially is a student better off volunteering to receive a service grant, or having a job that's fully or partly-funded under the revised Canada Summer Jobs program, or even the 75%  wage subsidy if an employer qualifies and is applying for that next week? Get out a calculator – there is math that needs to be done.  

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CKL RESIDENTS - RELATIONSHIP BREAKDOWN DURING COVID-19? WAIT - BEFORE YOU SETTLE ANYTHING - READ THIS AND BE VERY CAREFUL.

When two married spouses separate, among other issues they must resolve, they must “equalize” their “net family property”, respectively.

Basically, the spouse whose net worth increased more between the date of marriage and the date of separation must pay to the other spouse one-half of the difference in that increase over the other spouse, subject to a few rules and exceptions that often cause disputes in and of themselves.

If Sharon’s net worth increased by $10 during the marriage, but Mike’s, her married spouse’s, net worth only increased by $5, Sharon would legally be required to pay to Mike $2.50, thereby equalizing their net family properties.

Of course, it is more complicated than this, as special rules and exemptions also apply, but this is the basic family law requirement, unlike in most of the United States, where a married spouse is entitled to half of the combined assets and liabilities, generally.

COVID-19 now casts an uncertain shadow over this family law rule.

Assets have already substantially lost value during the pandemic, particularly investment holdings and likely the value of matrimonial homes, farms, etc.

The key dates are the date of marriage and the date of separation (referred to as the “valuation day”).

So, if the date of separation was early on during, or even before, the pandemic affected Ontario, there is substantial risk involved with utilizing the date of separation fair market value for assets to compute the equalization of net family properties.

It may create unfairness to the higher net worth spouse, forced to solely burden the economic impact of the virus, particularly if a settlement or trial does not take place for several months after the pandemic struck us.

If an asset is jointly-owned, the issue is less likely to arise, as both spouses typically, subject to a few exemptions, bear the prevailing market conditions post-separation. 

Furthermore, there is so much uncertainty about the future of the economy and market forces, the risk may actually be increasing as time passes during the pandemic.

A higher net worth spouse in these circumstances does, at law, have a remedy to assert to try to gain some relief.

Under the legislation for Ontario, the Court is empowered, subject to strict conditions, to reduce or vary an equalization payment by the higher net worth spouse to the other.

This is commonly referred to as an “unequal division” of net family properties. 

The relevant section of Ontario’s Family Law Act reads:

Variation of share

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.  R.S.O. 1990, c. F.3, s. 5 (6).

Purpose

(7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6).  R.S.O. 1990, c. F.3, s. 5 (7).

The test to be given an unequal division by the Family Court is high and onerous. 

Essentially, applying the regular and usual family law must, in the special circumstances, be shocking and unconscionable to the Court.

The question is: does COVID-19 fall into that high threshold potentially?

Certainly the 2008 recession was considered by the Court to justify deviating from the otherwise normally-applied family law for equalization of net family property.

It seems, then, that COVID-19 would also be proper grounds to request an unequal division, in the right circumstances. 

Indeed, a spouse’s net worth may be substantially impacted by the pandemic between the date of separation and the time when the Court holds a trial, or there is a settlement reached.

What to do?

If a spouse has experienced a material decline in his or her net worth since the onset of the pandemic, before or after a separation date, careful consideration needs to be given to possibly seeking an adjustment to how the law would otherwise, normally be applied by the Court.

It may be that, due to the virus, there are justifiable reasons to assert that the high test has been met to warrant a lesser property settlement payment than would otherwise be required.

In addition, there are other important considerations before resolving a relationship breakdown during, or following, the pandemic, particularly relating to the content of the separation agreement that may be entered. 

Below is an excellent list of issues that need to be carefully reviewed before finalizing any settlement of a relationship breakdown during, or related to, the pandemic, published on April 20, 2020 by Lorne Wolfson, a lawyer at the Toronto firm, Torkin Manes: 

  1. In the absence of formal screening by a qualified third party screener, a family lawyer cannot know if his or her client is entering an agreement under duress or undue influence, the risk of which is particularly heightened if the parties are still co-habiting under the same roof. The standard solicitor’s certificate, “My client is not suffering from duress or undue influence,” should be amended to reflect the particular circumstances in each case.
  2. Property settlements that rely on asset valuations or support arrangements that are based on current or proposed incomes should be viewed with caution since the value of assets and the level of incomes could suffer dramatic changes within days of finalizing a settlement. For property division, an “if and when” asset division may protect both parties against an unfair and unexpected drop in the value of a major asset. Support arrangements should clearly articulate the income assumptions on which the settlement is based, so that there is no doubt if a future decline in income constitutes a “material change in circumstances” from that which prevailed at the time the agreement was signed.
  3. In order to avoid a dispute in the future as to what constitutes a “material change in circumstances,” the agreement should contain an acknowledgment that a change in either party’s income of X per cent or $Y is deemed to constitute a “material change.” The agreement should also formally acknowledge that a change in circumstances that was foreseeable at the time the agreement was signed may still constitute a material change in circumstances.
  4. When an agreement is being signed without full financial disclosure or without all of the information that would usually be required, it should clearly be expressed to be a temporary, without prejudice agreement that will stay in force until a future date or event (a further agreement, a future variation or review, or when the courts resume regular operations).
  5. Non-variable support agreements should be viewed with particular caution. In the past, many payors were prepared to pay a lump sum in exchange for a full and final spousal support release. Today, such agreements may be more fraught with risk. Even if the non-variation clause is drafted to permit a review if there is a “catastrophic” change in circumstances, that exception still leaves open the possibility of a dispute as to what constitutes a “catastrophic change.”
  6. Variation in child and/or spousal support can also be justified even if there have been no changes in the incomes of the parties. For example, s. 7 expenses that were previously being shared (childcare, summer camp, activities and access costs) may no longer be incurred. In the absence of these expenses, the level of both child support and spousal support may need to be adjusted.
  7. Given the health threat posed by the current pandemic, security for support and equalization payments takes on enhanced importance. The presence or absence of life insurance, the appropriate level of insurance and what insurance can be obtained at what cost if either party loses his or her employment are issues that should be canvassed.
  8. In a majority of cases, the time the children spend in the care of each parent will not need to be changed. However, where parents are now working from home, are not working at all because of the loss of their employment or the division of parenting time necessitates a change to the residential schedule, the impact of these changes on child and/or spousal support needs to be carefully considered.



 

 

 

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IF I'M LAID OFF, OR CANNOT WORK, BECAUSE OF COVID-19, DO I HAVE TO PAY MY SPOUSAL SUPPORT? WILL THE COURT HELP ME OUT DURING THE PANDEMIC? WHAT YOU NEED TO KNOW.

WHAT CAN BE TAKEN TO COURT CURRENTLY?

Firstly, during Ontario’s State of Emergency, all limitation periods have been suspended. If you have a case that must be commenced, legally, by a certain date, that date is now extended at least until after the State of Emergency is ended.

Secondly, the Ontario Courts have made it very clear they are depending upon cooperation between parties to limit the number of hearings required, and avoid the need for Court proceedings whenever possible.

Thirdly, only “urgent” matters will be heard by the Court – whether a matter is “urgent” will require initial judicial review. If that threshold is passed, the Court will give directions for how the issues will legally be determined.

Urgency will be determined on a case-by-case basis. Matters which have been found to be urgent include those which:

  • were considered urgent prior to the suspension of Court operations;
  • are directly related to the COVID-19 pandemic;
  • may interrupt the closing of a real estate transaction;
  • involve a judgment debtor attempting to remove assets;
  • involve the expiry of a government-issued permit; and
  • involve termination of commercial leases.    

The Court has also in some cases extracted urgent issues from within broader legal matters.

Even where a matter is found to be urgent initially, the Court is likely to initially appoint a Justice to hear the matter and convene a case conference to determine the process to be followed for the remote hearing.

In some cases, the Court may also relax the legal formalities that would otherwise be strictly enforced, like how evidence is accepted by the Court – a case-by-case approach is being taken.

IS VARYING OR CHANGING SPOUSAL SUPPORT CONSIDERED URGENT?

COVID-19 may have removed or reduced a spousal support payor’s income, particularly if he or she owned/operated, or worked for, a “non-essential” business, per the Ontario Government’s continuing emergency order(s).

However, while that is certainly an urgent issue financially speaking, it may not be urgent legally.

Whether a spousal support payment may be varied or changed depends on several factors, including:

  • whether the parties were married to each other and, if so, the federal Divorce Act applies;
  • the specific language or wording of the parties’ separation agreement or Court order;
  • whether there has been a “material change in circumstances” that has some degree of continuity, rather than a temporary change, triggering the ability to review the support issues; and
  • other factors underlying the relationship when the agreement was signed or the Order was made and currently, such as the recipient’s need, the payor’s ability to pay, etc.

So far, the Court takes the position that support payor’s request to vary or change his or her spousal support payments does not qualify as an urgent matter in Family Court.

Rather, the Court indicates that requests to vary or change spousal support payments, if legally permitted to do so, may be made by payors retroactively at a later time.

There have been a number of cases to date indicating the Court’s position on this issue [Purdy v. Purdy, 2020 CanLII ONSC 1950; Baker v. Maloney, 2020 CanLII ONSC 1929, etc.]

Accordingly, both parties must use their best efforts to work together, to try to reach a temporary arrangement during the pandemic, even on a “without prejudice” basis.

Neither party will benefit from a surge in Family Court proceeding arising from COVID-19, when the Court’s operations expand.

While the pandemic continues, absence exceptional circumstances, neither a receiving nor paying party is likely to utilize the Family Court to demand, or vary, spousal support payments.

These are not fault-based, or blameworthy, circumstances for the most part – the pandemic was reasonably unforeseeable by most parties who previously separated.

As a result, practical sense and pragmatism must prevail, failing which delayed, protracted and challenging litigation will likely ensue.  

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CKL BUSINESSES - OUR TOP 12 TIPS TO HELP YOU WITH YOUR COMMERCIAL RENT DURING THE PANDEMIC

CKL businesses leasing commercial property from an inflexible landlord, and which cannot afford to pay ongoing commercial rent, should consider taking the following steps:

[1]    promptly request your landlord to apply for the new Canada Emergency Commercial Rent Assistance (CECRA) and to relieve you from your monthly rent for April, May and June, 2020;

[2]    apply for the expanded Canada Emergency Response Benefit, including if you are self-employed, or you paid yourself dividends from your incorporated small business;

[3]    request your landlord to act co-operatively, reasonably and flexibly, particularly if you are a non-essential business, as specifically directed by both the federal and provincial governments;

[4]    request your landlord to agree to a ninety-day, interest-free rental deferral, with the possibility of further extension depending on the ongoing status of the virus;

[5]    if your landlord remains inflexible and it strictly intends to enforce the lease, consider having your qualified lawyer send a letter affirming your position and threatening legal action against the landlord, including the payment of costs;

[6]    review your lease carefully for:

(a) a force majeure clause;

(b) health emergency clauses;

(c) liability protection clauses,

and any other clauses that may allow you to argue frustration of the commercial lease and, therefore, absolve you of liability for your obligations, including rental payment;

[7]    speak to your insurance broker about the availability of business interruption and any other available insurance that may assist you, including to pay rent, as explained above – consider providing your contact information for the ongoing Ontario class action lawsuit against insurers who have denied this coverage during COVID-19;

[8]   if necessary, seek assistance from your lawyer to apply for relief from forfeiture, subject to any further governmental steps that may be taken in the near future to assist you, or the landlord;

[9]   if your landlord sues you for any damages, speak to your qualified lawyer about defending the claim based on frustration of contract;

[10]   contact your M.P.P. and request that the Ontario government immediately and legislatively, or by other suitable measure, ban the forfeiture of commercial leases from March 15, 2020 until June 30, 2020 (or longer, if necessary, due to the pandemic);

[11] ensure all of your dealings with your landlord are in writing or, alternatively, make detailed notes about your verbal dealings with your landlord (i.e., potential evidence); and

[12] continue to monitor the expanding financial economic responses plans by both the federal and provincial governments, which will continue to change and expand during the pandemic.

For more information from us about the step-by-step guide to assist you, go here:  http://wardlegal.ca/31586368607060

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PARENTING DISPUTES DURING COVID-19 - THE CHILD IS PROTECTED BY THE CONSTITUTION, TOO - MINIMIZING RISK OF EXPOSURE IS ESSENTIAL

Section 7 of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11,.

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

During the COVID-19 pandemic, parenting disputes potentially trigger this constitution right; namely, security of the person, for not only the child or children at issue, but both parents, too. Canada’s Supreme Court has recognized and acknowledged this right for both in family-related disputes. 

To the extent the parents cannot co-operatively resolve their parenting arrangements by reasonable, mutual agreement, but rather one or both requests the intervention of the Family Court on the basis of urgency, the Court will be mindful of a child’s constitutional right to security of the person, which arguably includes limiting, or minimizing, exposure to COVID-19.

If a child is to be removed from the care of a parent, it must “only be done in accordance with the principles of fundamental justice which are found in the basic tenets of our legal system.”

These principles of fundamental justice are both substantive and procedural in nature.

The section 7 right of the security of the person is recognized judicially to protect both the physical and the psychological integrity of the individual [R. v. Morgenthaler, 1988 CanLII 90 (SCC)].  

Any judicial decision by the Court impacting the removal of a child from a parent’s care must incorporate a fair and reasonable hearing process by the Court [Kawartha-Haliburton Children Aid Society v. M. W., 2019 ONCA 316, paras. 68 and 69].

As noted by the Court in Ontario recently, “Given the above, I believe that the true test of our law and the fair administration of the law will be measured in how the most vulnerable in our society are treated and the administration of justice is dealt with in difficult times such as these.” [Children’s Aid Society of the Region of Peel v. M.G., 2020 ONCJ 167].

So, in any matter affecting the security of a child during the pandemic, the process for judicial determination must be both substantively and procedurally fair, not only for the child in question, but for the parents or guardians who cannot reasonably agree to the temporary arrangements during the pandemic.

 

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CKL BUSINESSES STILL OPERATING OR ABLE TO WORK REMOTELY - KEY INFO FOR THE EXPANDED WAGE SUBSIDY (75%) NOW AVAILABLE TO KEEP OR HIRE BACK EMPLOYEES. WHAT YOU NEED TO KNOW.

On April 11, 2020, the COVID-19 Emergency Response Act, No. 2, which includes the Canada Emergency Wage Subsidy (the “CEWS”), received Royal Assent and is now available to employers.

Am I eligible?

The CEWS is available to all “eligible employers,” which includes individuals, corporations, partnerships, non-profits and registered charities. In order to qualify for the CEWS, employers must attest to and provide documentation supporting a decline in monthly revenues of at least 15% in March, and 30% in April and/or May, as compared to either:  (i) that same month in 2019; or (ii) the average of the employer’s January and February, 2020 revenue. In calculating revenue for eligibility purposes, employers may use either an accrual (as-earned) or cash (as-paid) accounting method. However, whichever method is chosen must be used in determining eligibility for each of the three months. Affiliated employers are able to compute revenue on a consolidated basis, or on an individual basis. There are special rules for computing revenue for employers who engage in non-arm’s length transactions such as sales to affiliated corporations.

How much is the CEWS?

The CEWS program provides employers with a wage subsidy for a given employee of up to $847 per week, retroactive to March 15, 2020, for eligible remuneration paid for the period between March 15, 2020 and June 6, 2020 (even newly hired employees). The eligible periods to claim the CEWS are: March 15 to April 11, 2020, April 12 to May 9, 2020, and May 10 to June 6, 2020. The CEWS does not obligate the employer to top-up the employee’s wages above the subsidized amount.

How do I apply for the CEWS?

Eligible employers can apply for the CEWS through the Canada Revenue Agency’s My Business Account portal. Employers will have to attest to and provide records of their reduction in revenues and remuneration paid to employees. An employer that qualifies for one subsidy period (e.g. March) automatically qualifies for the subsequent period (e.g. April).

Does the CEWS replace the 10% temporary wage subsidy announced in March?

The CEWS does not replace the 10% temporary wage subsidy announced by the federal government in March. Employers that are not eligible for the CEWS may still qualify for the 10% subsidy, which remain available to certain categories of employer and does not require a reduction in revenue in order to qualify.

Can I get both subsidies?

An employer cannot take advantage of both subsidies simultaneously. For employers that qualified for the temporary wage subsidy and the CEWS, the amount of the temporary wage subsidy will be deducted from the subsidy under the CEWS program.

Does this mean that I can re-hire all of my employees - a limitation on your reimbursement?

By providing a subsidy of up to $847 per week per employee, with no overall limit, the CEWS is designed to encourage employers to re-hire employees that had to be terminated or laid-off due to COVID-19. However, in deciding whether – and when – to bring back employees, employers should keep in mind that a subsidy will not be available in respect of remuneration paid to employees that have been without remuneration for more than 14 consecutive days in a given eligibility period. This means that if an employer terminated an employee on April 11, rehires the employee but that employee does not receive remuneration for at least 14 consecutive days between the April, 12 to May 9, 2020 eligibility period, the employer would not be eligible for a wage subsidy in respect of remuneration paid to that employee during that period.

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NEW HEALTH UNIT ORDER - WHEN WE ARE LEGALLY REQUIRED TO SELF-ISOLATE. WHAT YOU NEED TO KNOW.

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

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

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

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

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

Commercial tenancy relationships in Ontario are governed by Ontario’s Commercial Tenancies Act (the “CTA”) and the lease agreement itself.

They are largely a matter of contract, in terms of rights and obligations, rather than statutory rules.

During Ontario’s State of Emergency (as of Mar. 17, 2020), many businesses in the City of Kawartha Lakes (“CKL”) have been deemed non-essential and forced to close, or substantially reduce operations. Even “essential” workplaces face lay offs, work shortages and possibly closure, at least temporarily.

For both essential and non-essential businesses, tremendous strain is imposed on commercial tenancy relationships.

It is estimated that up to one-half of businesses may be unable to pay commercial rent during the pandemic, particularly those in the food, human services and hospitality sectors.

While the federal government has recently announced financial support for landlords, thereby alleviating tenants from paying rent temporarily, the details have yet to be revealed.

Effectively, it is critical that landlords and commercial tenants act co-operatively, reasonably and flexibly during this crisis, in both their best interests. For example, owners of commercial spaces should consider offering independent tenants an automatic, sixty-day, interest-free rental deferral, with a possibility of further extension depending on the ongoing status of the pandemic.

However, some landlords may not be doing so, leaving the tenant in very difficult circumstances. 

To address landlords that do not act flexibly, the Ontario government (or federal government) must consider proactively enacting legislation, or other measure, prohibiting the forfeiture of commercial leases as of March 15, 2020 to, for example, June or July 30, 2020, or possibly longer depending on the development of the crisis, for commercial tenants failing to pay rent. 

If no deferral arrangement, or other solution, is agreed to by the landlord and tenant themselves, and there is no legislative intervention by either government, the issue becomes challenging to address, legally. These are unique, novel and unprecedented circumstances, legally speaking. It will be difficult to decide which commercial tenancy party should be burdened by the financial loss caused by a global pandemic, beyond either party’s reasonable expectations or control. How is the loss, which both will suffer, to be legally allocated?

Even if a deferral is agreed to, or the government intervenes to grant relief from forfeiture for non-payment of rent, it may not resolve the issue of resumption of the lease when the parties are able, or permitted, to do so. For example, a commercial tenant may financially be unable to accumulate and pay rental arrears when operations resume – rather, it is likely the business will initially struggle to pay current expenses to ramp up and continue, let alone back-pay of rent. 

WHAT CAN THE LANDLORD DO FOR NON-PAYMENT OF RENT?

Currently in Ontario, if commercial rent is not paid under the terms of the lease, and subject to the terms of the lease, a commercial owner/landlord could:

(a)   affirm the lease and sue for rent or for performance of an obligation (not available when rent distress is in progress) and commence an action in the Superior Court of Justice;

(b)   affirm the lease and re-enter and re-let the commercial premises (only if the landlord has reserved a right of re-entry in the lease or has received a Court order to the same effect);

(c)   affirm the lease and exercise rent distress rights (seizure of property assets); or

(d)   accept the repudiation of the lease, terminate and re-enter, and sue for the rent that would otherwise have been payable for the balance of the lease term.

It is likely that most commercial landlords with small-business tenants will elect (d) above during the pandemic.

CURRENTLY NO JUDICIAL ENFORCEMENT OF COMMERCIAL EVICTIONS:

However, due to the pandemic, the owner’s ability to take action, including to terminate, re-enter and sue for damages under (d) above, is currently fettered. 

Ontario has ordered that the Landlord and Tenant Board (“LTB”) may neither consider nor issue eviction orders in relation to residential tenancies and that sheriffs must postpone all scheduled eviction enforcements until further notice.

However, commercial tenancies are subject to the CTA, not governed by the LTB. Therefore, disputes about commercial tenancies are determined by the Superior Court of Justice.

The CTA provides that a commercial landlord may repossess a leased premises fifteen days after the tenant fails to both: (a) pay rent; and (b) remedy the failure in the interim. Notably, repossession by reason of the tenant’s non-payment of rent does not require judicial intervention or approval. However, it is usually recommended that such steps by a commercial landlord be sanctioned by the Court, ideally in advance. The resolution of all other disputes is in the Superior Court of Justice of Ontario (“ONSC”), rather than the LTB.

Moreover, the ONSC currently limits operations to only urgent matters and, therefore, the ability for commercial landlords to effect lease terminations will be greatly constrained legally, practically and by reason of public policy considerations and perceptions.

Urgent matters” are defined by the ONSC as:

  • urgent and time-sensitive motions and applications in civil matters, where immediate and significant financial repercussions may result if there is no judicial hearing; and
  • outstanding warrants issued in relation to Small Claims Court or Superior Court civil proceedings.

If a commercial landlord’s proceeding does not qualify, it is likely to be adjourned.

Even if an action could be brought in the ONSC, enabling the landlord to obtain an order for possession of the premises, the Sheriff has been instructed not to enforce the order until further notice.

LIMITATION PERIODS ARE ALSO SUSPENDED:

By an Order in Council, under sub-section 7.1 of Ontario’s Emergency Management and Civil Protection Act, limitation and procedural time periods are suspended in Ontario for the duration of this emergency. The suspension is retroactive to March 16, 2020. Therefore, for potential claims by commercial landlords that have already arisen, but for which the limitation period has not expired, and for claims that may arise after March 16, 2020, the limitation period is suspended until further notice.  

STEPS TO TAKE IF YOU ARE A COMMERCIAL TENANT:

If you are a commercial tenant unable to pay rent, with an inflexible landlord, take these steps:

[1]     STEP ONEApply for the CEBA:

On April 16, 2020, the federal Government announced additional measures to support small businesses, including expanding the Canada Emergency Business Account (CEBA), which provides interest-free loans of up to $40,000 to small businesses and not-for-profits, to include businesses that paid between $20,000 and $1.5 million in total payroll in 2019. This new range will replace the previously qualifying range of $50,000 to $1 million in total payroll.

Commercial tenants struggling financially should apply for this interest-free line of credit, $10,000 of which is forgivable by the government if it is repaid by December of 2020.

[2]      STEP TWORequest your landlord to apply for CECRA:

In addition to the expanded CEBA above, the federal Government also introduced Canada Emergency Commercial Rent Assistance (CECRA) for small businesses. The program will provide loans, including forgivable loans, to commercial property owners who in turn will lower or forgo the rent of small businesses for the months of April (retroactive), May, and June, 2020. Implementation of the program will require a partnership between the federal government and provincial government, which is responsible for property owner-tenant relationships. 

[3]      STEP THREEReview your commercial insurance policy:

[a]     Check for Business Interruption insurance coverage:

You should also consider contacting your insurance broker about your commercial insurance policy and the availability of business interruption (or other available) insurance coverage.

Currently most insurers in Ontario are denying this coverage, but there is already a class action lawsuit commenced in Ontario by commercial tenants claiming damages against those insurers for the denial.

For more information from us about business interruption coverage, go here: http://wardlegal.ca/31585663827877

[b]     Check for other potential insurance coverage:

There may be other potential coverage under your tenant’s policy, such as:

1.    Civil Authority Insurance – covering losses arising from a government orders preventing access to the insured property. Of course, for this coverage to come into effect, there must be a governmental order. Neither governmental recommendations, nor private party decisions (i.e., closing office space), will meet this threshold. However, they may be addressed in a force majeure clause. In this case, the Ontario government has ordered the closure of non-essential workplaces during the State of Emergency, potentially triggering this insurance coverage; and

2.    Liability Insurance – covering losses arising from “third party” claims - a “third party” is anyone not insured under the policy, which could include the landlord or the tenant. Currently it is unsettled whether any liability will arise from third parties contracting COVID-19 from, or while on, an occupier’s premises. However, these policies will come into effect for defending such claims if and as they arise.

[4]      STEP FOUR - Review your lease:

Carefully review your lease agreement and check for:

[a]   dates to meet any obligation, such as rent due date, completion of landlords’ or tenants’ work, expiry dates, damage and destruction time periods;

[b]   any clause obliging you to stay open for business during the term of the lease, given the Ontario government’s emergency order to close all non-essential businesses – you may be forced to close, or the landlord may have to close its building and, if so, either the doctrine of frustration or force majeure may be triggered, as explained below; and

[c]   any clause requiring you to comply with all laws – with orders and legislation being issued by all levels of government, you and the landlord need to be aware of the ongoing changes, respectively.

[5]   STEP FIVE

Review your lease for any “Force Majeure”/Unavoidable Delay Clause(s):

A “force majeure” event is an unforeseeable circumstance that prevents a person from performing an otherwise valid agreement or contract. If a person is unable to perform his or her contractual obligation due to unforeseen events, beyond his or her control, a force majeure clause may be triggered to validate the non-performance. Force majeure clauses can suspend the timeliness of obligations and are a matter of negotiation.

These clauses may, in certain circumstances, excuse a tenant’s failure to perform contractual obligations, like paying rent. They are commonly incorporated into commercial leases.

For example, your lease may contain a clause requiring you to stay open and operate during regular business hours during the lease. If so, and if you are deemed a non-essential business by government decree, it may trigger your ability to successfully argue force majeure, thereby relieving you of your contractual non-monetary obligations under the lease.

It is important to review your lease for timelines and deadlines that are, or will be, affected by the pandemic.

Most commercial leases contain a force majeure clause. Generally, the clause will provide that if any of the described events occur, which significantly affects a tenant’s ability to perform the lease obligations, the tenant will not be required to perform the obligation, either for as long as the event continues or permanently. However, in commercial leases, this virtually always excludes the payment of rent and the surrender date from the suspension.

So, if your lease contains a force majeure clause, read it carefully. In most commercial leases, those clauses expressly exclude a tenant’s obligation to pay rent. As a result of COVID-19, many commercial tenants that, by government emergency order, cannot operate and, therefore, generate revenue, are forced into a position of breach of their commercial leases.

Landlords would, if nothing were changed, be able to terminate the lease, replace the tenant and sue for unpaid rent under the lease, both past and future. A result that simply cannot arise in the CKL or elsewhere in Ontario.   

Force majeure clauses are also narrowly interpreted, which means the words used to identify the triggering event are narrowly construed. To be relied upon successfully, a force majeure clause must both: (a) be in the lease itself; and (b) expressly describe the event causing the inability to perform, or the delay in performance. If there is no express force majeure clause, it will not be implied into the agreement by the Court.

For an event to be considered a force majeure event, it must: (a) be unforeseen; (b) render performance of the obligation “impossible” (not merely more costly or difficult, unless cost or difficulty are expressly referenced); and (c) be the actual and direct cause of your inability to meet your obligation, as distinct from merely being incidental.

Note that many force majeure clauses require a tenant or landlord to give notice to the other and other affected parties that the “event” is, or will, result in a failure to meet one or more obligations under the agreement. For example, maintenance and repair obligations. Such notice allows the other party or parties to take steps to mitigate, if possible. There may be specific requirements for the notice in the lease agreement. A party failing to perform a contract must also consider what, if any, steps are available to mitigate the damages that may be caused due to the non-performance.

For more information from us about force majeure, go here: http://wardlegal.ca/the-virus---does-it-cancel-contracts-rental-agreements-separation-and-parenting-agreements-maybe---read-on

[6]   STEP SIX

Review your lease for Health Emergency” Clauses and Operation of Building and Control of Common Areas:

Health emergency” clauses allow a landlord to limit or control access to the building, if required or recommended by the authorities. Similar to a force majeure clause, a health emergency clause provides that where there is a triggering event (which is typically described with a non-exhaustive list of “epidemic”, “pandemic”, “disease”, “contagion”, etc.), the landlord will have increased control over the common areas and will be permitted to create new rules and regulations regarding the operation of the building.

These clauses may permit a landlord to close the building (or parts of the building), control access to the building and permit a landlord to implement new health-related rules and regulations, which the tenant, its employees and invitees must follow. These clauses may also provide for how additional services for the building are to be paid. For example, increased sanitation and cleaning services may be undertaken. Additional support by property managers may be required to respond to COVID-19. The cost of these services may be passed on to tenants through additional rent or operating cost provisions in the lease. However, if not, a health emergency clause may permit the landlord to charge back these costs to the tenants.

Finally, these provisions may have a force majeure element, too. If the health emergency exists, such as COVID-19, the landlord will not be in default if it fails to comply with its maintenance and repair obligations until health emergency ends.

In addition to business interruption insurance coverage, some insurance policies may also incorporate broadly-worded ‘loss of attraction’ or even ‘pollution’ clauses, particularly for industrial commercial tenancies, which potentially could trigger insurance coverage and, if so, financial assistance with paying rent and utilities during the pandemic.

[7]     STEP SEVENConsider applying for relief from forfeiture:

If rent is unpaid and the landlord either terminates the lease, per (d) above, or otherwise distrains or re-possesses the premises, the tenant may also apply to the Court to relieve it from the forfeiture under the lease [Courts of Justice Act, s. 98 (“CJA”)].

The Court is empowered to reinstate the tenancy, even though the lease may have been validly terminated by the landlord for non-payment of rent.

Specifically, the CTA, sub-section 20(1), reads:

Relief against re-entry or forfeiture

  1. (1) Where a lessor is proceeding by action or otherwise to enforce a right of re-entry or forfeiture, whether for non-payment of rent or for other cause, the lessee may, in the lessor’s action, if any, or if there is no such action pending, then in an action or application in the Ontario Court (General Division) brought by the lessee, apply to the court for relief, and the court may grant such relief as, having regard to the proceeding and conduct of the parties under section 19 and to all the other circumstances, the court thinks fit, and on such terms as to payment of rent, costs, expenses, damages, compensation, penalty, or otherwise, including the granting of an injunction to restrain any like breach in the future as the court considers just.”

 

In addition to this relief from forfeiture remedy, the Court “may grant relief against penalties and forfeitures, on such terms as to compensation or otherwise as are considered just” [CJA, s. 98].

The Court also has a general, inherent authority and ability to grant relief from forfeiture, beyond these statutory provisions. While it is entirely discretionary to the Court, which will review each case on a case-by-case, factual basis, the Court is likely to consider:

- the conduct of the tenant and the gravity of the breach;

- whether the purpose or object of the right of forfeiture in the lease was essentially to secure the payment of money; and

- the disparity or disproportion between the value of the property forfeited and the damages caused by the breach.

The Court is also likely to consider other circumstances, too, specific to the parties themselves and their specific lease agreement, such as their contractual history, the conduct of both parties and whether a party attempted to act reasonably or with good faith, or act otherwise. 

Prior to the onset of the pandemic, generally speaking, the Court would often grant relief from forfeiture to a commercial tenant, if the tenant could pay up the arrears and carry on paying the accruing rent. If money or some additional time were capable of resolving the problem and restoring the status quo arrangements, the Court is likely to favour that outcome. However, pre-COVID-19, the Court usually required the tenant in default to pay all arrears owing to be granted relief from forfeiture, conditionally. 

But now what? COVID-19 has imposed unique, novel and entirely uncertain circumstances upon landlords and tenants, entirely without blameworthy conduct. The law has not yet addressed relief from forfeiture when a business is deemed non-essential by government order and forced to close, or substantially reduce operations. Physical distancing and other containment measures also impact significantly the ability for both essential and non-essential businesses to operate and generate regular revenue to pay financial obligations ongoing, like commercial rent.

While it has yet to be tested judicially, presumably the law will need to evolve and adopt to COVID-19, including by granting relief from forfeiture without requiring the payment of all arrears or, at least, a structured program to do so reasonably affordable to the tenant and its specific circumstances.

On the other hand, the landlord, which may rely on commercial rent payments to pay its own mortgage for the building, must avail itself of the mortgage deferral options now available through the large financial institutions, which must co-ordinate with the non-payment of rent by the tenant. 

Due to COVID-19, if a commercial tenant, particularly a non-essential business, applies for relief from forfeiture, the Court will need to expand its review and consider additional circumstances, such as:

[1]    that the tenant may be required to close, or reduce operations, by government decree;

[2]    the bargaining power and economic status of each party, as relief should more likely be granted to small business owners occupying premises owned by larger, commercial property companies, in particular;

[3]    the ability of the landlord to seek deferral of underlying mortgage payments, or other obligations, if the landlord can demonstrate reliance on the tenant’s rent payments to pay those monthly obligations; and

[4]    a fair and sensible allocation between the specific parties for the losses mutually experienced due to the global pandemic, including allocating those losses reasonably and with a view to the public’s best interest to restore the economy and commerce as soon as possible.

[8]      STEP EIGHT - Consider the doctrine of frustration of contract:

If there is no force majeure clause in the lease, a commercial tenant is not necessarily without a remedy for an unforeseen event, such as COVID-19, that causes the tenant to be unable to perform its obligations under the lease.

The legal doctrine of frustration provides that where the occurrence of an event results in a contract becoming fundamentally different in character from what the parties originally intended, the contract may be terminated without liability. However, a fairly high threshold must be achieved for the doctrine will be invoked by an Ontario Court and, if so, it means that the contract will be terminated (and not merely suspended for the duration of the event). Frustration will only apply where the event or circumstance was unforeseeable and not the fault of either party.

Presumably COVID-19 would potentially qualify as the triggering event, but every case is likely to be considered on a case-by-case basis. 

In Ontario, the relevant legislation is the Frustrated Contracts Act (the “FCA”), which under sub-section 2(1), affirms that it applies “to any contract that is governed by the law of Ontario and that has become impossible of performance or been otherwise frustrated and to the parties which for that reason have been discharged. The FCA also deals with the adjustment of rights and liabilities between the parties when a contract has been frustrated.

If a lease is terminated by the landlord and the tenant does not apply to the Court for relief from forfeiture, the landlord may also sue the tenant for back and future rent and any other damages arising from the defaulted tenancy.  

If so, the tenant should rely on the FCA, or the doctrine of frustration generally, to release both parties from their contractual obligations, respectively, including the obligation to pay rent.

While economic downtown historically has been held by the Ontario Courts not to give rise to a frustration of contract, times are now dramatically different. The Court must now re-evaluate the law in the face of COVID-19 and adopt to achieve fairness and reasonableness during the pandemic, to both parties. It would be inconceivable for a Court to conclude, for example, there can be no frustration when a small business is ordered to shut down by a provincial emergency order.

It is likely that a defence related to frustration will prevail for a tenant that is sued, but every case is likely to be reviewed on its own merits and a case-by-case basis. 

SUMMARY:

Therefore, if you are a commercial tenant who cannot pay your rent and: (a) your landlord will not act flexibly or responsibly; and (b) neither the federal nor provincial governments intervene, so that everything above still applies, you should take these steps:

[1]    request your landlord to apply for the new CECRA;

[2]    apply for the expanded CEBA;

[3]    request your landlord to act co-operatively, reasonably and flexibly, particularly if you are a non-essential business, as specifically directed by both the federal and provincial governments, in writing;

[4]    request your landlord to agree to a ninety-day, interest-free rental deferral, with the possibility of further extension depending on the ongoing status of the virus, in writing;

[5]    if your landlord remains inflexible and it strictly intends to enforce the lease, consider having your qualified lawyer send a letter affirming your position and threatening legal action against the landlord, including the payment of costs;

[6]    review your lease carefully for:

(a) a force majeure clause;

(b) health emergency clauses;

(c) liability protection clauses;

and any other clauses that may allow you to argue frustration of the commercial lease and, therefore, absolve you of liability for your obligations, including rental payment;

[7]    speak to your insurance broker about the availability of business interruption and any other available insurance that may assist you, including to pay rent, as explained above;

[8]   if necessary, seek assistance from your lawyer to apply for relief from forfeiture, subject to any further governmental steps that may be taken in the near future to assist you, or the landlord; and

[9]   if your landlord sues you for any damages, speak to your qualified lawyer about defending the claim based on frustration of contract.

You might also call your M.P.P. and request that the Ontario government immediately and legislatively, or by other suitable measure, ban the forfeiture of commercial leases from March 15, 2020 until June 30, 2020 (or longer, if necessary, due to the pandemic). 

 

 

 

 

 

 

 

 

 

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IMPORTANT CHANGES TO THE CERB - MORE NOW QUALIFY - YOU CAN MAKE UP TO $1,000 WHILE GETTING THE BENEFIT - YOU CAN RECALL FOR SHORT PERIODS WITHOUT DISQUALIFYING YOUR EMPLOYEES - WAGE TOP-UPS FOR ESSENTIAL WORKERS. WHAT YOU NEED TO KNOW.

The Canada Emergency Response Benefit (the "CERB") has been expanded, now offering more financial/wage support to low-income, essential workers.

The CERB eligibility rules have been changed to:

  • allow people to earn up to $1,000 per month, while collecting the CERB;
  • extend the CERB to seasonal workers who have exhausted their EI regular benefits and are unable to undertake their usual seasonal work as a result of the COVID-19 outbreak; and
  • extend the CERB to workers who recently exhausted their EI regular benefits and are unable to find a job or return to work because of COVID-19.

These changes will be retroactive to March 15, 2020.

So, employers that need to recall employees for short periods of time now may do so, without risking the employees' entitlement to the CERB. 

In addition, if an essential worker makes a salary that is less than, or similar to, what he or she would receive from the CERB, the government will work with Ontario through a new transfer to cost-share a temporary top-up for the salaries of workers deemed essential in the fight against COVID-19 and who make less than $2,500 a month.

More details as to the application and delivery of this measure will be released shortly.  

What employees will be deemed essential for this wage top-up has yet to be confirmed.  It appears it will be workers who are "front-line in hospitals and nursing homes, those ensuring the integrity of the food supply, or providing essential retail services to Canadians."

 

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CKL SMALL BUSINESSES - BETTER ACCESS TO THE $40,000 INTEREST-FREE LINE OF CREDIT - HELP WITH PAYING YOUR COMMERCIAL RENT IS ON THE WAY. WHAT YOU NEED TO KNOW.

Today the federal Government announced:

[1]      CEBA:

Eligibility for this interest-free line of credit (loan) has been expanded.

The previously announced program, which offers businesses up to $40,000 in a government-backed loan, will now be available to businesses with payrolls worth between $20,000 and $1.5 million.

Previously, the interest-free loan was only for those with payrolls worth between $50,000 and one million.

Up to $10,000 of the loan is non-repayable.

The government also indicated that 195,000 loans amounting to about $7.5 billion have been approved since the loan program opened for applications a week ago.

Expanding the access to the program will obviously help more small businesses access the funds, but new businesses, the self-employed and businesses that pay with dividends still will not qualify.

[2]      COMMERCIAL RENT ASSISTANCE:

For small businesses (owner/operators), financial assistance will be made available to pay commercial rents for April, May and June.

The plan is not yet formalized, but will worked out with the Ontario premier, because rent issues fall under provincial jurisdiction.

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MY 13-WEEK TEMPORARY LAY OFF ENDS SOON - NOW WHAT? GUIDE TO CKL BUSINESSES AND EMPLOYEES

Some CLK businesses have been deemed non-essential and, therefore, cannot operate during the emergency.

Other essential businesses, despite being legally permitted to operate, have had to consider or undertake downsizing, restructuring, or otherwise cost-cutting.

Either way, as a result, local businesses have had to consider or have implemented temporary or permanent layoffs.

While temporary layoffs can be an effective means of cost-saving, they can also be risky if employers have not protected their right to temporarily lay off employees in their employment contracts.

The Ontario Employment Standards Act, 2000 (the “ESA”) allows employers to temporarily lay off employees, so long as the layoff lasts for no more than 13 weeks in any consecutive 20-week period.

However, if a layoff extends for more than 13 weeks in any consecutive 20-week period, but lasts less than 35 weeks in any consecutive 52-week period, the layoff will still be considered temporary in a few exceptional cases (i.e., if the employer has continued to pay the employees substantially and/or provides them with benefits, if the employees would be entitled to receive Employment Insurance or the CERB, or if the employees are subject to a timely recall).

The 20-week period is a “rolling window” - if an employee is laid off for even one day more than 13 weeks in any consecutive 20-week period, the layoff will not be temporary. The same is true of the 52-week window described above, which applies in limited circumstances. If the applicable threshold is exceeded, termination is triggered, and is deemed to have retroactively occurred on the first day of the layoff.

In addition, a temporary lay off may be extended for any period, if the employee consents. If so, an employer is allowed to continue the lay off to coincide with the length of the pandemic. 

Despite an employer’s right to temporarily lay off an employee under the ESA, where an employment contract does not provide for the possibility of such a layoff, Ontario courts have often favoured employees who claim to have been constructively dismissed.

Accordingly, employers face risk if they lay off an employee for common law damages, even where they have complied with the temporary layoff provisions of the ESA.

However, there are cases in Ontario in which the Court has inferred a right to impose a temporary layoff in the absence of an express contractual right in limited circumstances.

For example:

  • the employer has a history of temporary layoffs for various reasons, including a shortage of work;
  • the employer is in an industry where temporary layoffs or breaks in service are common;
  • the employer has a policy in place to warn employees that temporary layoffs are possible when there is a downturn in business or a shortage of work; and/or
  • the employer continues to provide benefits to laid off employees during the layoff term

Despite this, employment contracts should incorporate a standard lay off clause protecting the employer’s right to temporarily lay off employees in accordance with the ESA and without further notice or compensation.

 

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TESTING AND SCREENING EMPLOYEES FOR THE VIRUS TO PROTECT OTHERS - WHAT IS ALLOWED? WHAT ABOUT PRIVACY? WHAT CKL BUSINESSES AND EMPLOYEES NEED TO KNOW

While essential workplace employers have a statutory duty to take reasonable steps to protect the health and safety of employees, privacy laws still apply during the pandemic.

Privacy laws impact what employers are permitted to do in terms of screening and monitoring employees during the COVID-19 crisis.

Ontario’s Privacy Commissioner has not yet provided any guidance with respect to COVID-19 testing and screening by employers during the pandemic.

While the Privacy Commissioner has expressed that privacy laws continue to apply in these circumstances, it has also qualified that such laws are not meant to be applied as barriers during the course of public health emergencies.

In other words, privacy laws should not obfuscate employers taking reasonable precautions to ensure the health and safety of employees.

Can employees be asked if they have COVID-19 symptoms?

Employers should not employees if they have virus symptoms, if employees are not displaying symptoms.

Employers must have reasonable grounds to believe an employee is symptomatic and, if so, requesting information from the employee may be appropriate.

What is reasonable in the circumstances depends on the workplace – some workplaces inherently involved more risk, such as hospitals and long-term care facilities.

Employers should adopt an infectious disease or communicable illness policy requiring employees to proactively disclose if they have, or live with someone who has, COVID-19 symptoms.

Under the policy, an employee should be required to:

  • inform his or her employer of illness-related symptoms through a confidential process;
  • self-isolate at home;
  • follow the advice of the relevant public health agency on treatment and recovery; and
  • keep the employer updated regularly.

Can employees be required to provide a doctor's note?

Most physicians in Ontario are not able to test for COVID-19 currently. Testing has been an ongoing challenge throughout Ontario.

In addition, provincial and federal health directives discourage us from attending a physician’s office, meaning physical examination is unlikely and, therefore, the quality of any examination may be unsatisfactory.

While employers are generally entitled to request a physician’s certificate or note if an employee is absent from work, such as on sick leave, doing so due to COVID-19 is impracticable.

If an employee is a confirmed case, or has been symptomatic, a physician could potentially opine on whether the employee continues to be symptomatic, but not likely be able to verify whether the employee is infection free.

Accordingly, while the employer may be entitled to request a doctor’s statement, it is likely to have compromised value.

Can employees be required to be tested before going to work?

COVID-19 in testing in Ontario is not widely available – it must be directed by a healthcare authority. It cannot be obtained on request of any person. 

For most of us, obtaining a test absent a directive to do so is unlikely.

Therefore, employers are not entitled to require testing before employees attend their work generally.

There may be exceptions to this for higher-risk workplaces, such as hospitals and long-term care facilities.

Similarly, if the employer has reasonable grounds to believe infection is present, such as symptoms being displayed, employees may be rightfully requested to leave their workplace and contact the local health unit, or other health authority, to determine if assessment and testing should be undertaken.

Can employees’ temperatures be taken before allowing them to attend work? Is thermal testing allowed?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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BECAUSE OF AND DURING COVID-19, CAN EMPLOYERS LAY OFF OR FIRE EMPLOYEES WITHOUT HAVING TO PAY THE USUAL SEVERANCE? WHAT YOU NEED TO KNOW.

Many employers in the City of Kawartha Lakes, particularly those designated as “non-essential” have been forced to scale-down or cease operating, including by provincial emergency order. Even “essential” workplaces have been forced to lay off, place on infectious disease leave or terminate employees due to the pandemic. Uncertainty abounds for everyone, in terms of the legal rights of both employers and employees.   

The virus does not discriminate – it affects all marketplaces, both bricks-and-mortar businesses and those operating by e-commerce. 

For more information from us about whether to lay off, terminate or place an employee on a temporary leave of absence, go here: http://wardlegal.ca/31585663827849.

However, during this unprecedented uncertainty, the key question is whether employers are able to terminate an employee, including by failing to recall them after a temporary lay off, without paying the employee statutory minimum entitlements under Ontario’s Employment Standards Act, 2000 (the “ESA”), due to the so-called “frustration” of the employment agreement (i.e., due to the pandemic).

If an employment contract is “frustrated” (a legal concept), an employer is not required to give, or pay, notice of termination or pay in lieu of notice.

The ESA excuses an employer from giving, or paying, statutory termination pay for any employee, “whose contract has become impossible to perform or has been frustrated by a fortuitous or unforeseeable event or circumstance,” unless the “impossibility or frustration is the result of an illness or injury suffered by the employee”.

In addition, the ESA relieves an employer from paying statutory severance pay for any employee, “whose contract of employment has become impossible to perform or has been frustrated”, unless the impossibility or frustration is the result of: (a) a permanent discontinuance of all or part of the employer’s business because of a fortuitous or unforeseen event; (b) the employer’s death; (c) the employer’s death, if the employee received a notice of termination before his or her death; or (d) an illness or injury suffered by the employee. 

Historically, the Courts have interpreted these as catastrophic events causing an employer to shut down, or substantially scale down operations, such as fires, floods, natural disasters or so-called “Acts of God”.

It remains unclear in Ontario, however, whether businesses closing, or reducing employees due to scaled-down operations, due to the pandemic will be viewed by Courts and the Ontario Government as being caused by a “fortuitous or unforeseeable event or circumstance” making the employee’s job impossible to perform.

Beyond the ESA, generally if an employment contract does not contain a force majeure clause, or the clause is of no assistance because of its terms, an employer may, in very limited circumstances, also be able to argue that it is relieved from its contractual obligations by claiming the contract is “frustrated” at common law.

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

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

Generally, as in the case of force majeure clauses, our Courts have not accepted economic disruption or falling markets to constitute an event that would frustrate a contract. Courts have generally held that changes to the circumstances must amount to an unforeseen event capable of triggering frustration at common law and that, even if there were, it would be incumbent on the employer to adduce real evidence in support thereof. Courts have also recognized that a business failure caused by cancellation of orders, insolvency, landlord eviction or loss of key personnel could result in an employer not being able to provide continued employment to employees in a workplace. However, generally speaking, these events are considered to be a part of the normal business cycle and cannot be construed as "unforeseen". A business failure for these reasons would not discharge an employer's obligation to provide individual compensation for length of service or group termination under the ESA or at common law, presumably. 

Arguably, employers may take the position that their employment agreements have been frustrated because COVID-19 rendered it impossible to perform due to:

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

• a fortuitous or unforeseeable event or circumstance;              

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

• the actions of any government authority that directly affects the operations of the employer, like being designated as “non-essential” (but being permitted to operate by e-commerce, remotely, etc.).

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

Logically, if the closure of a business, or reduction in work force, is directly related to COVID-19 and there is no other manner in which the employee could perform work in a different way, such as remotely, these exceptions may apply to exclude employees from receiving both statutory and common law-based compensation for length of service and group termination pay.

However, this may not always be the case.

If an employer terminates an employee for reasons that are not directly related to COVID-19, or if the employee’s work could still be done (albeit in a different way), these exemptions would not seemingly apply.

Each situation is very likely to be determined on a case-by-case basis. 

A business failure caused by cancellation of orders, insolvency, landlord eviction or loss of key personnel could result in an employer not being able to provide continued employment to employees in a workplace. These events are considered to be a part of the normal business cycle and cannot be construed as "unforeseen" generally. A business failure for these reasons would not discharge an employer's obligation to provide individual compensation for length of service or mass termination under the ESA. Similarly, business failure for reasons of cancellation of orders, insolvency, Therefore, the employer would not be relieved of the obligation to pay at least statutory termination and severance pay.

Temporary illness, injury or disability is not considered to be an unforeseeable event or circumstance that would discharge an employer’s obligations under the ESA, either. However, if medical evidence shows that an employee is permanently disabled as a result of COVID-19 and will never be able to return to the workplace, there may be frustration at common law, relieving the employer of paying beyond the statutory minimums. Employers must be mindful of their duty to accommodate under Ontario’s Human Rights Code, too.

Therefore, the key points:

  • each situation is likely to be judicially addressed on a case-by-case basis;  
  • it remains the responsibility of both the employee and employer to work together and be flexible to find ways for the employee to perform work in a different way, even if modified, such as working from home, which many employees are now doing;
  • the ESA sections referred to above relates only to statutory termination and severance pay, not any applicable common-law entitlement; and
  • the test is basically “impossible” to perform – a high threshold for employers to meet.

To terminate any employee, or fail to recall any employee after a temporary lay off, an employer would effectively have to prove that it was impossible to continue employing the employee, in any way or capacity, causing the parties’ relationship to be frustrated. 

Employers will need to prove, in each case, that the employee’s employ was impossible to maintain, or frustrated by, COVID-19 (which must be proved as a fortuitous and unforeseen event effecting each, specific employee), failing which the employee will be entitled to both statutory and common law notice entitlements.

 

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MORE HELP TO CKL EMPLOYERS ENROLLED IN WORKPLACE SAFETY AND INSURANCE - A FULL RELIEF PACKAGE FROM THE WSIB - WHAT YOU NEED TO KNOW.

To offer more assistance to CKL employers who are enrolled, the Workplace Safety and Insurance Board (“WSIB”) has now announced a "relief package", permitting employers to defer premium reporting and payments until August 31, 2020.

The WSIB has also announced that the costs for COVID-19 claims will be allocated on a Schedule-wide basis and, therefore, will not result in premium increases for 2020.

Schedule 1 employers are eligible to defer their reporting and payments until August 31, 2020. This applies to monthly payments due March 31, April 30, May 31, June 30, and July 31, 2020, to quarterly payments due April 30 and July 31, 2020, and to annual payments due April 30, 2020.

Schedule 2 employers—–including certain publicly funded organizations and certain businesses involved in federally regulated industries—are also eligible to defer reporting and payment obligations.

No interest will accrue and no penalties will be charged during the deferral period.

Notably, eligible employers are not required to opt-in to the deferral - it is automatic. For those employers electing not to participate, reports may still be submitted online and payments may can be made online or via mail.

The WSIB has also announced that there will be no change in premium rates for 2020, aimed at facilitating employees' ability to comply with public health orders, such as self-isolation or quarantine orders. This will not, however, change employers’ obligations under Ontario's Occupational Health and Safety Act.

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CKL RESIDENTS - URGENT/EMERGENCY FINANCIAL HELP AVAILABLE TO YOU - UP TO $730 MONTHLY; MORE WITH CHILDREN - HOW TO QUALIFY - APPLY ONLINE - WHAT YOU NEED TO KNOW

If you need urgent financial help and you live in the City of Kawartha Lakes, you could be eligible for approximately $733 for a month if you are a single person and need help paying for food and shelter.
More if you have children.
Up to 48 days of support is available depending on your specific situation
You may qualify if you are in a crisis or emergency situation, and do not have enough money for things like food and housing.
For example, a crisis or emergency includes situations where you:
- have been affected by COVID-19
- are being evicted from your home
- are in or are leaving an abusive relationship
- are worried about your safety
You are not eligible if you are getting assistance from Ontario Works or the Ontario Disability Support Program.
Apply for this help online here:
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FEDS SAID TODAY TO GO OUTSIDE ONLY IF "ABSOLUTELY ESSENTIAL" - IF SO, YOUR UPDATED PROTOCOL FOR GOING TO ANY ESSENTIAL STORE, INCLUDING YOUR NON-MEDICAL MASK

Today the federal government announced we should only leave home if it is "absolutely essential". If you cannot use a click-and-collect service to buy your essential goods, here is an updated protocol to follow when you go to an essential store, like groceries and pharmaceuticals: 

  1. follow the containment measures implemented by the essential service, including the waiting outside to enter, one-way arrows, standing on the taped distance lines, etc.;
  2. always engage in the ‘hockey stick’ rule (i.e., physical distancing of two metres; six feet), including with essential workers;
  3. only one family member should attend the essential service, not more;
  4. wear your non-medical (cloth) mask, primarily to protect others from you, if you may be asymptomatic;  
  5. only buy groceries, get gas, get your drugs, etc. no more than one per week; no social browsing or shopping – if possible, limit it to once bi-weekly;
  6. do not attend with your own bags or containers;
  7. minimize any chit-chat and social interaction with any other customers or essential service workers; no gathering; no idle talking;
  8. adhere to all COVID-19 containment measures, including coughing, if necessary, into your elbow, washing your hands thoroughly immediately before and after you attend the essential service;
  9. minimize your time in the essential service – prepare and take a list in advance; no browsing;
  10. importantly, do not vent to the essential workers – they are endangering themselves to help you; none should be exposed to ridicule, criticism, complaints or general frustration;
  11. thank every essential worker you see, if possible – just a quick, “Thank you for everything” – no need to engage in a discussion;
  12. if possible, consider providing a tip to an essential worker and, if so: a) strictly physically distance; and b) provide the cash tip in an envelope and lay it at the counter only; and
  13. be civil, respectful, polite, courteous and cordial to everyone, particularly the essential workers, as you would at any time before the onset of this pandemic.

 

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CKL RESIDENTS - MORE FINANCIAL HELP - CERB EXPANDED TODAY - SEASONAL;PART-TIME; REDUCED HOURS; STUDENTS - PLUS A WAGE HIKE TO ESSENTIAL WORKERS - MORE HELP ON THE WAY TO POST-SECONDARY STUDENTS AND CKL BUSINESSES THAT CANNOT PAY COMMERCIAL RENT

Today the federal Government announced more flexible rules for claiming the Canada emergency response benefit (the “CERB”), which previously excluded, for example, students and employees or self-employed people working reduced hours.

They also announced a wage boost for essential workers who make less than $2,500 a month, including those working in long-term care facilities for the elderly.

This applies to “a volunteer firefighter, or a contractor who can pick up some shifts, or you've got a part-time job in a grocery store”.

"We will do whatever we can to help you do your job and support you through this time."

Seasonal workers and those who have recently run out of employment insurance will now also be eligible for CERB.

People who make less than $1,000 a month due to reduced work hours will also qualify.

The CERB now has expanded eligibility criteria, and they will announce more relief soon about additional help for post-secondary students and businesses having trouble paying commercial rent.

The CERB is now focussing on the needs of seasonal workers, people who have exhausted EI benefits, students, owner-operators and those who continue to receive a modest income from part-time work, royalties and honorariums.

The changes are back-dated to March 15. 

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COVID-19: HIRE YOUTH IN THE CKL (15 TO 30), INCLUDING STUDENTS - 100% WAGE SUBSIDY NOW AVAILABLE - WHAT BUSINESSES AND NON-PROFITS NEED TO KNOW

To facilitate the employ of our youth in the City of Kawartha Lakes, those between 15 and 30, including students and summer students, the federal government has changed, temporarily at least, its Canada Summer Jobs program. 

Enhanced wage subsidies are now available for these potential employers:

  • not-for-profit organizations;
  • the public sector; and
  • private sector organizations with 50 or fewer full-time employees across Canada.

What You Need to Know:

  • wage subsidy for private and public sector employers has been increased - they are eligible to receive up to 100% of the minimum hourly wage for each employee (previously this was only available to not-for-profit employers);
  • the end date of employment has been extended from August 28, 2020 to February 28, 2021 to address delays to the start date of summer jobs caused by the pandemic;
  • employers have more flexibility to adapt their projects and job activities to support essential services;  
  • employers may hire on a part-time basis (less than 30 hours per week) (previously employers were required to provide full-time positions, between 30 to 40 hours per week);
  • other eligibility requirements remain unchanged, including the necessary time of employee, being between 6 and 16 weeks; and
  • placements can begin as of May 11, 2020.  

Although the call for Canada Summer Jobs applications for the 2020 season ended on February 28, 2020, the federal government has announced it is attempting to identify organizations providing essential services that could offer youth jobs, but did not previously apply for the program. 

The federal government also indicates that it will co-operatively work with employers to ensure that work options reflect public health requirements and advice related to COVID-19.

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I'M LAID OFF - DO I HAVE TO BE RECALLED? SHOULD I SUE MY EMPLOYER FOR WRONGFUL TERMINATION? CAN MY EMPLOYER DO THIS? EMPLOYERS AND EMPLOYEES IN THE CKL - WHAT YOU NEED TO KNOW ABOUT LAY OFFS DURING THE PANDEMIC

Due the shutdown of non-essential workplaces, effective March 24, 2020, many employers have laid off, or will continue to consider temporarily laying off employees, particularly if those employers do not qualify as “essential workplaces”.

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

JUDGE-MADE LAW IN ONTARIO – LAY OFF CAN BE A TERMINATION OF EMPLOY:

Generally, at least before the pandemic, Ontario employers had no free-standing right, statutorily or otherwise, to lay off employees.

Rather, an employee may be laid off only if such a right is:

  1. expressly or impliedly contemplated by the contract of employment; or
  2. expressly agreed to by the employee.

Employers who lay off employees contrary their employment contracts are liable to provide those employees with reasonable notice or pay in lieu, resulting in potentially costly litigation and severance obligations.

Similarly, employees who decline to consent to a layoff must be treated, and provided with notice, as though terminated without cause.

The refusal of an employee to accept the proposed layoff is not a sufficient basis to allege cause for termination.

Whether the or not right to lay off an employee is contemplated by an employment contract, and whether or not a temporary lay off is appropriate for your business, requires both legal and factual analysis.

However, given the emergency declarations by both the federal and provincial governments, including the ordered closure of non-essential businesses in Ontario, this existing law is now entirely uncertain.

These issues have yet to be addressed and resolved by our Ontario Courts, most of which are operating on skeletal resources currently.

Accordingly, the pandemic is very likely to force changes, at least temporarily, to the law regarding lay offs in Ontario, mostly because there cannot be a flood of wrongful termination claims inundating a system that will already be challenged by lack of resources and judicial catch-up.

STATUTORY LAY OFFS IN ONTARIO:

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

Temporary Lay Off – Defined:

A temporary lay off is:

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

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

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

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

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

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

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

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

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

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

Mass Layoffs:

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

  • more than 10 employees are impacted within certain periods of time in New Brunswick, Newfoundland and Labrador, Nova Scotia and Saskatchewan; and
  • more than 50 employees are impacted within certain periods of time in Alberta, BC, Manitoba and Ontario.

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

Exceptions:

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

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

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

• a fortuitous or unforeseeable event or circumstance;                   

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

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

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

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

SO WHAT NOW?

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

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

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

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

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

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

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HEALTH AND SAFETY OF EMPLOYEES WORKING AT HOME - TIPS TO EMPLOYERS IN THE CKL TO AVOID LIABILITY AND LAWSUITS DURING AND AFTER THE PANDEMIC

What are the employer’s obligations to an employee when an employee is not working in the office? With so many employees now working from home, employers’ health and safety obligations need to be considered. 

ONTARIO HEATH AND SAFETY LEGISLATION DOES NOT APPLY TO WORKING AT HOME:

The health and safety of employees is largely governed by Ontario’s Occupational Health and Safety Act (the “Act”).

However, for employees working at home, or remotely, as it stands, the Act does not apply to those circumstances. 

Sub-section 3(1) the Act provides that it “does not apply to work performed by the owner or occupant or a servant of the owner or occupant to, in or about a private residence or the lands and appurtenances used in connection therewith.”

Employers cannot reasonably be expected to attend an employee’s home and evaluate risks, nor be expected to assume liability for the safety of their employees in their own home environments, over which the employer has no control. 

However, there may still be risks in an employee’s home, which ordinarily would be covered by the Act – both employees and employers should discuss potential safety issues for the working-at-home arrangements, even if employers are not statutorily required to do so. 

Despite this, due to the pandemic, it is entirely unclear if this legal position will be applied in future.

WORKPLACE VIOLENCE AND HARASSMENT:

The Act addresses directly workplace violence and harassment, including requiring employers to mandatorily have an adequate workplace policy.

These protections should still apply to employees working at home, sensibly.  

Employees may still be expected to interact with co-workers, customers and clients, for example, including virtually. While there may be less risk of physical contact while remote working takes place, there remains the risk of other forms of violence or harassment, which is prohibited in the workplace by the Act. There need not be a physical office interaction for violence or harassment to be experienced.  

Employers should consider how to ensure safe working conditions for their employees who are working at home. While employers obviously are not going to be doing home visits to make sure there are no cords to trip on or boxes about to fall on anyone’s head, they can do things like ensure that workers are being adequately supervised, even when working remotely. A clear and reasonable remote working policy can take an employer a long way. 

Effectively, there is simply a lack of caselaw decisions on this point and no clear direction on whether the Act will apply to working at home, or not, particularly during this pandemic and the unprecedented circumstances it brings.

TIPS TO EMPLOYERS TO MINIMIZE THE RISK OF LIABILITY AND LAWSUITS DURING AND AFTER THE PANDEMIC:

Therefore, employers are well-advised to carefully consider these issues during the pandemic, or at any other time, particularly for work-at-home arrangements with remote employees:

[1]      Health and Safety:

  • the employer’s obligations under the Act in terms of health and safety and its responsibility to take preventive measures continue during this period of telework; and
  • the potential that the workplace could be considered to include an employee’s home must be considered, including the employee’s workstation set up and ergonomics.

[2]     Mental Health, Psychological and Sexual and Other Violence and Harassment:

  • employers must strive to promote and preserve civility and courteous conduct, especially while using new methods of communication, like virtual teleconferencing, etc.;
  • employers should provide etiquette guidelines for virtual communication between co-workers and customers;
  • employers must discourage misconduct or failure to engage in proper teamwork – new technology does not alter this important objective;
  • employers have a legal responsibility to prevent and address psychological, sexual and other harassment situations;
  • employers may be responsible for events that occur outside the usual workplace, but relate to work;
  • employers should adopt a formal working-at-home policy, clearly setting out the expectations; and
  • employers should review their complaint and inquiry procedures, to ensure they may be adequately processed outside of the workplace, too. 

[3]      Employment Standards Act, 2000:

Employers must also be mindful of their statutory obligations and minimum labour standards, which apply to those working at home, too, including:

  • modifying work schedules;
  • managing overtime; and
  • addressing costs associated with working from home.

[4]      Privacy and Confidentiality:

It is critical for employers to consider and manage effectively the privacy and confidentiality of work-related information, including:

  • to accommodate properly the contractual performance of work in the employee's home;
  • for transporting and storing work documents; and
  • establishing work spaces at home to ensure that information/documents are kept confidential and ethical obligations are respected and adhered to strictly.

Caselaw References:

Decision No 2249/16, 2016 ONWSIAT 2410

Watkins v. The Health and Safety Association for Government Services, 2013 CanLII (ON LRB)

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COVID-19 IN THE CKL - AN UPDATE ON PENALTIES FOR FAILING TO COMPLY WITH CONTAINMENT MEASURES - NEW FINES, ETC.

An update on enforcement measures available in the City of Kawartha Lakes to require COVID-19 containment: 

FEDERAL GOVERNMENT:

  • for failure to quarantine for 14 days after returning to Canada, a fine of up to $750,000 and imprisonment up to six months;   
  • for causing risk of imminent death or serious bodily harm to another, while defying the federal Quarantine Act, a fine of up to 1 million dollars and jail for up to three years, or both; and
  • federal Criminal Code remains available, including bodily harm provisions.  

ONTARIO EMERGENCY ORDERS:

Any person who fails to comply with a provincial emergency order (i.e., gatherings of more than five, non-essential businesses cannot be open to public, etc.) may face:

  • for an individual, a fine of up to $100,000 and imprisonment up to one year
  • for an individual who is a director/officer of a company, a fine of up to $500,000 and imprisonment up to one year; and
  • for a company, a fine of up to ten million dollars.

For a list of all emergency orders by Ontario to date, go here: https://www.ontario.ca/page/emergency-information

THE MUNICIPALITY (CKL):

  • unlike other municipalities, the CKL has not enacted a by-law prohibiting contact with others (non-household members) within the 2 metre distance;  
  • has prohibited the use of amenities on municipal property and required pass-through use only;  
  • has not made any state of emergency orders regarding enforcement of containment measures or conduct of business;
  • CKL has not directed cottagers and seasonal residence owners to stay home and refrain from travelling to the CKL; and   
  • OPP and KL Police Service may enforce federal and provincial emergency orders (no gathering of five or more, etc.) and the federal Criminal Code   

HKPRD HEALTH UNIT:

  • Class Section 22” issued, effective Apr. 14, 2020 at 12 p.m. (per Ontario’s Health Protection and Promotion Act)
  • self-isolation for a minimum 14 days is mandatory for any person in the CKL who:
  1. has been diagnosed;
  2. is considered a probable case; and/or
  3. has had contact with a confirmed case
  • self-isolation requires not leaving your home for any reason, including to obtain essential goods or services; no visitors except as approved by the Health Unit; and
  • Health Unit cannot issue fines directly, but can request the Ontario Court of Justice to issue a fine of up to $5,000 per day.  

Note: Physical distancing and wearing a mask in public are not legally required at any level of government.  

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COVID-19 - SPOUSES - IF YOU SEPARATE RECENTLY BEFORE OR DURING THE PANDEMIC, BE CAREFUL! YOU MAY NOT HAVE TO PAY AS MUCH TO SETTLE PROPERTY - WHAT YOU NEED TO KNOW

When two married spouses separate, among other issues they must resolve, they must “equalize” their “net family property”, respectively.

Basically, the spouse whose net worth increased more between the date of marriage and the date of separation must pay to the other spouse one-half of the difference in that increase over the other spouse, subject to a few rules and exceptions that often cause disputes in and of themselves.

If Sharon’s net worth increased by $10 during the marriage, but Mike’s, her married spouse’s, net worth only increased by $5, Sharon would legally be required to pay to Mike $2.50, thereby equalizing their net family properties.

Of course, it is more complicated than this, as special rules and exemptions also apply, but this is the basic family law requirement, unlike in most of the United States, where a married spouse is entitled to half of the combined assets and liabilities, generally.

COVID-19 now casts an uncertain shadow over this family law rule.

Assets have already substantially lost value during the pandemic, particularly investment holdings and likely the value of matrimonial homes, farms, etc.

The key dates are the date of marriage and the date of separation (referred to as the “valuation day”).

So, if the date of separation was early on during, or even before, the pandemic affected Ontario, there is substantial risk involved with utilizing the date of separation fair market value for assets to compute the equalization of net family properties.

It may create unfairness to the higher net worth spouse, forced to solely burden the economic impact of the virus, particularly if a settlement or trial does not take place for several months after the pandemic struck us.

If an asset is jointly-owned, the issue is less likely to arise, as both spouses typically, subject to a few exemptions, bear the prevailing market conditions post-separation. 

Furthermore, there is so much uncertainty about the future of the economy and market forces, the risk may actually be increasing as time passes during the pandemic.

A higher net worth spouse in these circumstances does, at law, have a remedy to assert to try to gain some relief.

Under the legislation for Ontario, the Court is empowered, subject to strict conditions, to reduce or vary an equalization payment by the higher net worth spouse to the other.

This is commonly referred to as an “unequal division” of net family properties. 

The relevant section of Ontario’s Family Law Act reads:

Variation of share

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.  R.S.O. 1990, c. F.3, s. 5 (6).

Purpose

(7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6).  R.S.O. 1990, c. F.3, s. 5 (7).

The test to be given an unequal division by the Family Court is high and onerous. 

Essentially, applying the regular and usual family law must, in the special circumstances, be shocking and unconscionable to the Court.

The question is: does COVID-19 fall into that high threshold potentially?

Certainly the 2008 recession was considered by the Court to justify deviating from the otherwise normally-applied family law for equalization of net family property.

It seems, then, that COVID-19 would also be proper grounds to request an unequal division, in the right circumstances. 

Indeed, a spouse’s net worth may be substantially impacted by the pandemic between the date of separation and the time when the Court holds a trial, or there is a settlement reached.

What to do?

If a spouse has experienced a material decline in his or her net worth since the onset of the pandemic, before or after a separation date, careful consideration needs to be given to possibly seeking an adjustment to how the law would otherwise, normally be applied by the Court.

It may be that, due to the virus, there are justifiable reasons to assert that the high test has been met to warrant a lesser property settlement payment than would otherwise be required.

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COVID-19: YOUR UPDATED CHEAT SHEET FOR THE 75% AND 10% WAGE SUBSIDIES TO KEEP OR HIRE BACK EMPLOYEES IN THE CKL - WHAT YOU NEED TO KNOW

Update to the CKL – the Canada Emergency Wage Subsidy, per Bill C-14, the COVID-19 Emergency Response Act, No. 2, passed April 11, 2020:

NEW SOURCE DEDUCTION/REMITTANCE REFUND:

  • a new 100% refund for certain employer-paid contributions to Employment Insurance and the Canada Pension Plan, covering 100% of employer-paid contributions for eligible employees for each week in which the eligible employer receives the 75% CEWS - employers are required to continue to collect and remit employer and employee contributions to each program, as usual; and
  • employers may apply for the new refund at the same time that they apply for the 75% CEWS.

NOT-FOR-PROFITS AND CHARITIES:

  • not-for-profits may include membership fees; and
  • not-for-profits and charities may include or exclude (by election) revenue from government funding – whatever decision is made will continue to apply for the entire 75% CEWS period.  

CALCULATION OF “ELIGIBLE REMUNERATION” AND THE SUBSIDY:

  • subsidy is 75% of the amount of “eligible remuneration” paid to an employee;
  • a maximum benefit of $847 per week per employee;  
  • applies to individual employee salaries up to $58,700 annually;
  • no cap on the total subsidy an employer may claim;  
  • subsidy is taxable to the employer at year end (as “government assistance”);   
  • “eligible remuneration” includes salary, wages and other remuneration, like taxable benefits paid to an eligible employee, but does not include severance pay or stock options benefits, etc.; and  
  • no guidance on whether commissions, bonuses and pay incentive plans may be included.  

GENERAL:

  • system expected to be operational in May, 2020;
  • employers now able to apply for the CEWS through the Canada Revenue Agency's My Business Account portal here: https://www.canada.ca/en/revenue-agency/services/e-services/e-services-businesses/business-account.html;
  • reportedly the funding will flow within two to five weeks;  
  • more details about the application process are forthcoming;
  • what you select for your comparative calculation will apply for the full CEWS period (i.e., current month or the same month in 2019 OR the average in Jan. and Feb. 2020);
  • if you apply and are later held to be ineligible for the 75% CEWS, you will be required to repay the subsidy, plus an additional 25% penalty - penalties for fraudulent claims are severe and may also include additional fines and possible imprisonment; and
  • Note: to calculate your revenues for the 75% CEWS, you may use either the ‘cash accounting’ method (i.e., when payments are actually received by you) or the “accrual accounting” method (i.e., when you issue an invoice), which may offer more flexibility for your qualification application – whatever you elect, you must continue with that approach for the duration of the program.
  •  
  • APPLICATION FOR THE 75% CEWS:
  • entitlement to the subsidy will be based entirely on the salary or wages actually paid to employees - employers will need to pay the salary or wages to their employees, and, if eligible, will be repaid for those salaries or wages by the government through this subsidy program;
  • eligible employers will be able to access the subsidy by applying through the Canada Revenue Agency (CRA) My Business Account portal as well as a web-based application expected to be available in the next three to six weeks;
  • employers will need to keep records demonstrating their reduction in arm's-length revenues and remuneration paid to employees;
  • the government has indicated that funds will be available in approximately three to six weeks - for those employers not currently signed up for direct deposit, it will be beneficial to sign up for quicker access to funds through this program;
  • all employers will be expected to make best efforts to top up salaries to pre-crisis levels;
  • the government will consider implementing an approach to limit duplication between the two programs (CEWS and the CERB) in order to encourage all eligible employers to quickly rehire employees - according to the government, this could include a process to allow individuals rehired by their employer during the same eligibility period to cancel their CERB claim and repay the CERB payment for the relevant period;
  • if you have claimed the 10% Temporary Wage Subsidy before claiming the 75% CEWS, you will be required to reduce the latter claim by the amount previously received; and
  • municipalities do not qualify.  

THE 10% TEMPORARY WAGE SUBSIDY:

The 10% Temporary Wage Subsidy remains (“TWS”) available to employers:

  • employers who do not qualify for the CEWS may still qualify for the TWS;
  • no revenue threshold;  
  • maximum cap available to businesses; and  
  • application for the subsidy is not required (unlike the 75% CEWS).
  • the subsidy is equal to 10% of remuneration paid during the eligible period, up to a maximum subsidy of $1,375 per employee and $25,000 per employer in total (i.e., all employees, full period of eligibility);
  • the eligible period is March 18, 2020 to June 19, 2020, inclusive;
  • eligible employers may reduce the amount of payroll deductions required to be remitted to the CRA;  
  • can be accessed as soon as April 15, for quarterly and regular (monthly) payroll remitters;
  • eligible businesses must have had an existing business number and payroll account with the CRA on March 18, 2020 – a new corporation cannot be established, nor can an existing corporation apply for a payroll account after March 18, 2020 to take advantage of this subsidy;
  • example: the March subsidy can be calculated for your payroll remittances due on April 15 or, alternatively, you can defer your claim to a lump sum amount later on or year end for the specific eligibility period only – if so, the Canadian Revenue Agency will pay that amount to you or, alternatively, transfer it to you as a source deduction/remittance credit; and
  • municipalities do not qualify.

More information about the CEWS is here: https://www.canada.ca/en/department-finance/economic-response-plan/wage-subsidy.html

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COVID-19 - DO FULL CHILD AND SPOUSAL SUPPORT PAYMENTS CONTINUE? EVEN FOR NON-ESSENTIAL WORKERS? WHAT YOU NEED TO KNOW.

If your workplace has been ordered by emergency order to be shut down, or you have otherwise been unable to continue to work due to COVID-19, consideration should be given to ongoing child and spousal support obligations.

If a support payor is collecting the new CERB, the Family Responsibility Office cannot garnish that benefit, being $2,000 monthly taxable for currently a three-month period, to pay either child or spousal support.

In Ontario, loss of employ or income reduction involuntarily may invoke the ability for the support payor to request reduced support payments, depending on the circumstances.

Undoubtedly COVID-19 and the fallout, including the emergency orders, would qualify as a reasonably unforeseen event capable of triggering a review of the existing support arrangements.

Indeed, and despite that ostensibly we remain in the early days of the pandemic, the 2008 recession was accepted by the Ontario Courts as such an event, so it stands to reason the coronavirus would fall into the same category.

At law, an existing child support obligation may be varied in the event of a, “change of circumstances” since the child support order was made.

Likewise, a spousal support order may be changed in the event a, “change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order.”

While the law has yet to tackle COVID-19 in this context, it seems relatively straightforward that the pandemic would, at least on a prima facie basis, adequately support a request to vary a child or spousal support payment.

What should you do, as either the payor or recipient of either child or spousal support?

Firstly, review your Court order or your separation agreement.

Check for any clause in the document, usually in the support-related part of the document, that refers to a “material change in circumstances”, or language comparable.

If that clause exists, it may give the support payor legal ability to request a variation of the existing support payments.

Be watchful, in your Order or agreement, for any other clause that may require the existing support arrangements to continue unless they are varied by an order of the Court, or an arbitrator.

If that clause exists, it is likely the case that the support payor may be required to continue payment temporarily, while seeking to vary the existing arrangements.

In any event, the Family Court is largely only operating with skeletal resources and is mostly only entertaining emergency or urgent matters generally. While the Family Court is gradually expanding its services during the pandemic, it remains strained.

As a result, the Family Court is very unlikely to be receptive to a slew of urgent motions regarding the payment of existing child and/or spousal support, unless it qualifies for urgency and the test applied by the Court.

Accordingly, it is very important for both the support payor and the recipient to review their existing Order, or agreement, to know the framework they agreed to initially and what, if any, clauses may apply in the circumstances.

It is usually always better for two former partners to agree on a resolution, at least temporarily, rather than escalating the matter to the Family Court, which is, of course, very expensive and, at least for now, delayed in its process. 

If a support payor is a non-essential worker, or otherwise not working due to the virus, he or she should take reasonable steps to try to replace that income, including by applying for federal government-related benefits, such as the CERB or, if available, the Ontario government’s Emergency Assistance program, which is administered by most municipalities. Any steps taken should be recorded fully, as they may need to be used as evidence in future.   

 

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COVID-19 - ESSENTIAL WORKERS (AND OTHERS) ARE FEELING STRESSED AND ANXIOUS - STILL, WEED AT WORK IS NOT PERMITTED, UNLESS MEDICALLY JUSTIFIED - WHAT YOU NEED TO KNOW

Many are stressed and anxious during the pandemic. 

Still, the law on cannabis at work remains unchanged. 

Employers may be confused and uncertain how legalized cannabis use impacts their workplace, including how they can monitor and regulate it. It is important to understand the difference between using weed recreationally and for medical reasons – they are treated differently, at law.

The Ontario Human Rights Code (the “Code”) applies to both recreational and medical cannabis. However, unless an employee has an actual, or perceived, addiction to cannabis, or must use medical cannabis due to a recognized disability, the recreational use of cannabis is unprotected by Ontario’s human rights law.

Essentially, using pot recreationally, absent an addiction or to treat a recognized disability, is not protected by the Code. As a result, if these circumstances do not exist, employers are lawfully entitled to:

· impose rules for using recreational cannabis in the workplace, preferably by a written workplace policy;

· prohibit every employee from possessing any recreational weed in the workplace (or at work otherwise), despite that possessing small amounts is now legalized;

· stop employees from coming or reporting to work while influenced by recreational pot, even though use is now legal; and

· if these rules are not followed, discipline those employees who do not follow them, including up to termination for cause, if appropriate.

Cannabis use for medical reasons is different. The same rules apply as they do for other medically-necessary drugs or substances. Employees may be protected to use medical cannabis in the workplace. However, employers are entitled to require the employee to provide justification for his or her disability-related need to use medical pot. Employers can also require information from the employee about restrictions arising from the disability itself, or the medical cannabis used to treat the disability. If an employee’s use of medical cannabis creates a potentially serious safety risk in the workplace, and unlike other disability-related conditions, employers may not be obliged to accommodate the employee using medical cannabis, particularly if would cause undue hardship to the employer.

So, the Code may be triggered and apply, but only if an employee is addicted to pot, or it is used by the employee to treat a legitimate, medical condition that is recognized as a disability by the Code. In that case, employers cannot subject that employee to the same rules. Rather, the employee’s right to be in a workplace free from discrimination related to a disability must prevail, as required by the Code, including a potential duty to accommodate the employee.

If the employee’s use of medical cannabis creates no undue hardship to the employer, it may need to accommodate the employee’s use of it in the workplace, or at work. If so, and so long as no serious safety risk is created, the employer may need to permit the employee to use the medical cannabis at work, or while working, but only during break time and subject to Ontario’s smoking and vaping laws. The key is whether the use of medical cannabis will interfere with the employee’s duty to perform his or her duties in a safe manner, ensuring not to create a serious safety risk in the workplace. If so, accommodation is likely required, subject to how and when the cannabis is consumed by the specific employee and subject to anti-smoking and vaping laws in effect across Ontario.

Need an effective workplace policy for smoking, vaping and cannabis use?

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NEW ONTARIO EMERGENCY ORDERS NOW IN EFFECT IN THE CKL - A QUICK SUMMARY

The Ontario government has announced new emergency orders impacting the City of Kawartha Lakes:

April 9 – Construction - regulation amended regarding the closure of non-essential workplaces to permit the operation of certain construction workplaces for projects which are due to be completed before October 4, 2020 and that would provide additional capacity in the production, processing, manufacturing or distribution of food, beverages or agricultural products;

April 10 – Child Care - temporary order issued preventing child care centres from collecting payments from parents while care is not being provided, and protecting parents' child care spaces – the announcement reminded child care providers that they can seek government financial support to assist their business;

April 11 – Emergency Declaration - extended all previously issued emergency orders under the Emergency Management and Civil Protection Act - those orders have been extended to April 23, 2020 and include the orders respecting the closure of non-essential workplaces;

Additional Orders - The government has also announced new and additional orders by press releases:

  • regarding temporary health or residential facilities, which the government announcement indicates will "[make] it easier to repurpose existing buildings and put up temporary structures, like tents, so communities can meet their local needs quickly. This will reduce pressure on health care facilities, where needed, and help shelters provide more space for sleeping to maintain the physical distancing requirements to reduce the spread of the virus";
  • allowing hospitals and retirement homes to enter into agreements which will "[temporarily enable] hospitals to increase their capacity by using the beds and services of retirement homes without certain labour relations implications during the declared provincial emergency"; and
  • effective April 16, 2020, to "[support] construction workers and businesses with emergency action to help improve cash flow in the construction industry during the COVID-19 outbreak. This will lift the suspension of limitation periods and procedural time periods under the Construction Act and allow the release of holdback payments to contractors and subcontractors."

On April 12, 2020, the government also announced that it is, together with the Ontario Privacy Commissioner, developing a new health data platform called the Pandemic Threat Response (PANTHR).  According to the government press release, PANTHR will "hold secure health data that will allow researchers to better support health system planning and responsiveness."

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COVID-19 - BUSINESS FORCED TO CLOSE? CANNOT OPERATE? CAN'T PAY RENT? WHAT CAN THE LANDLORD DO? WHAT ARE COMMERCIAL TENANTS' RIGHTS? Q & A FOR COMMERCIAL LANDLORDS AND TENANTS IN THE CKL

Commercial tenancy relationships in Ontario are governed by Ontario’s Commercial Tenancies Act (the “CTA”) and the lease agreement itself.

They are largely a matter of contract, in terms of rights and obligations, rather than statutory rules.

Non-essential workplaces have been ordered closed by emergency order.

Other workplaces have been forced to discontinue operations, in whole or in part, due to the pandemic.

Governments and industry leaders are encouraging landlords to be flexible and work with their commercial tenants to find practical solutions to bridge the gap through this difficult time.

Some may not choose to do so.

WHAT CAN A COMMERCIAL LANDLORD DO?

In Ontario, if commercial rent is not paid under the terms of the lease, and subject to the terms of the lease, a commercial owner/landlord could:

(a) affirm the lease and sue for rent or for performance of an obligation (not available when rent distress is in progress) and commence an action in the Superior Court of Justice;

(b) affirm the lease and re-enter and re-let the commercial premises (only if the landlord has reserved a right of re-entry in the lease or has received a court order to the same effect);

(c) affirm the lease and exercise rent distress rights (seizure of property assets); or

(d) accept the repudiation of the lease, terminate and re-enter, and sue for the rent that would otherwise have been payable for the balance of the lease term.

WHAT LIMITATIONS ON LANDLORD’S TERMINATION AND LAWSUIT STEPS NOW APPLY DUE TO THE PANDEMIC?

Due to the pandemic, the owner’s ability to terminate, re-enter and sue for damages is currently hindered. 

Ontario has ordered that the Landlord and Tenant Board (“LTB”) may neither consider nor issue eviction orders in relation to residential tenancies and that sheriffs must postpone all scheduled eviction enforcements until further notice.

However, commercial tenancies are subject to the CTA, not governed by the LTB. Therefore, disputes about commercial tenancies are determined by the Superior Court of Justice.

The CTA provides that a commercial landlord may repossess a leased premises fifteen days after the tenant fails to both: (a) pay rent; and (b) remedy the failure in the interim. Notably, repossession by reason of the tenant’s non-payment of rent does not require judicial intervention or approval. However, it is usually recommended that such steps by a commercial landlord be sanctioned by the Court, ideally in advance. The resolution of all other disputes is in the Superior Court of Justice of Ontario (“ONSC”), rather than the LTB.

Moreover, the Superior Court currently limits operations to only urgent matters and, therefore, the ability for commercial landlords to effect lease terminations will be greatly constrained legally, practically and by reason of public policy considerations and perceptions.

Urgent matters” are defined by the Superior Court of Justice as:

  • urgent and time-sensitive motions and applications in civil matters, where immediate and significant financial repercussions may result if there is no judicial hearing; and
  • outstanding warrants issued in relation to Small Claims Court or Superior Court civil proceedings.

If a commercial landlord’s proceeding does not qualify, it is likely to be adjourned.

Even if an action could be brought in the Superior Court, enabling the landlord could obtain an order for possession of the premises, the Sheriff has been instructed not to enforce the order until further notice.

LIMITATION PERIODS ARE SUSPENDED:

By an Order in Council, under sub-section 7.1 of Ontario’s Emergency Management and Civil Protection Act, limitation and procedural time periods are suspended in Ontario for the duration of this emergency. The suspension is retroactive to March 16, 2020. Therefore, for potential claims by commercial landlords that have already arisen, but for which the limitation period has not expired, and for claims that may arise after March 16, 2020, the limitation period is suspended until further notice.  

STEPS TO TAKE IF YOU ARE A COMMERCIAL TENANT:

[1]      Review your lease:

Firstly, carefully review your lease agreement and check for:

[a] dates to meet an obligation, such as rent due date, completion of landlords’ or tenants’ work, expiry dates, damage and destruction time periods;

[b]  any clause obligating you to stay open for business, given the Ontario government issued an order to close all non-essential businesses – you may be forced to close, or the landlord may have to close its building; and

[c] any clause requiring you to comply with all laws – with orders and legislation being issued by all levels of government, you and the landlord need to be aware of the ongoing changes, respectively.

[2]      Review your lease for any “Force Majeure”/Unavoidable Delay Clause:

A “force majeure” event is an unforeseeable circumstance that prevents a person from performing an otherwise valid agreement or contract. If a person is unable to perform his or her contractual obligation due to unforeseen events, beyond his or her control, a force majeure clause may be triggered to validate the non-performance. Force majeure clauses can suspend the timeliness of obligations and are a matter of negotiation.

It is important to review your lease for timelines and deadlines that are, or will be, affected by the pandemic.

Most commercial leases contain a force majeure clause. Generally, the clause will provide that if any of the described events occur, which significantly affects a tenant’s ability to perform the lease obligations, the tenant will not be required to perform the obligation, either for as long as the event continues or permanently. However, in commercial leases, this virtually always excludes the payment of rent and the surrender date from the suspension.

Force majeure clauses are narrowly interpreted, which means the words used to identify the triggering event are narrowly construed. To be relied upon successfully, a force majeure clause must both: (a) be in the lease itself; and (b) expressly describe the event causing the inability to perform, or the delay in performance. If there is no express force majeure clause, it will not be implied into the agreement by the Court.

For an event to be considered a force majeure event, it must: (a) be unforeseen; (b) render performance of the obligation “impossible” (not merely more costly or difficult, unless cost or difficulty are expressly referenced); and (c) be the actual and direct cause of your inability to meet your obligation, as distinct from merely being incidental.

Note that many force majeure clauses require a tenant or landlord to give notice to the other and other affected parties that the “event” is, or will, result in a failure to meet one or more obligations under the agreement. For example, maintenance and repair obligations. Such notice allows the other party or parties to take steps to mitigate, if possible. There may be specific requirements for the notice in the lease agreement. A party failing to perform a contract must also consider what, if any, steps are available to mitigate the damages that may be caused due to the non-performance.

For more information from us about force majeure, go here: http://wardlegal.ca/the-virus---does-it-cancel-contracts-rental-agreements-separation-and-parenting-agreements-maybe---read-on

[3]      Review your lease for Health Emergency” Clauses and Operation of Building and Control of Common Areas:

“Health emergency” clauses allow a landlord to limit or control access to the building, if required or recommended by the authorities. Similar to a force majeure clause, a health emergency clause provides that where there is a triggering event (which is typically described with a non-exhaustive list of “epidemic”, “pandemic”, “disease”, “contagion”, etc.), the landlord will have increased control over the common areas and will be permitted to create new rules and regulations regarding the operation of the building.

These clauses may permit a landlord to close the building (or parts of the building), control the individuals who are permitted to access the building and permit a landlord to draft and deliver a set of health related regulations which the tenant and its employees and invitees must follow.

These clauses may also provide for how additional services for the building are to be paid. we are seeing increased cleaning services by virtually all landlords or property managers that have responded to the pandemic. The cost of these cleaning services may already be passed on to tenants through additional rent or operating cost provisions; however, if they are not, a health emergency clause may permit the landlord to charge back these costs to the tenants.

Finally, these provisions may have a force majeure element in that, if the health emergency exists, the landlord will not be in default if it does not comply with its maintenance and repair obligations until after the health emergency.

[4]      Business Interruption (and other available) insurance:

Speak to your insurance broker about your commercial policy and the availability of business interruption (or other available) insurance coverage.

Currently most insurers are denying this coverage, but there is already a class action commenced in Ontario claiming damages for the denial against many insurers.

For more information from us about business interruption coverage, go here: http://wardlegal.ca/31585663827877

There may be other potential coverage under your tenant’s policy, such as:

1.Civil Authority Insurance - covers losses arising from a government order preventing access to the insured property. Of course, for this coverage to come into effect there must be a governmental order. Neither governmental recommendations, nor private party decisions (i.e. closing office space), will meet this threshold. However, they can be addressed in a force majeure clause; and

2.Liability Insurancecovers losses arising from “third-party” claims. In the insurance context, a “third-party” is anyone not insured under the policy and could include the landlord or the tenant. It is unclear whether any liability will arise from third-parties contracting COVID-19 from or while on an occupier’s premises. However, these policies will come into effect for defending such claims as they arise.

In addition to business interruption insurance coverage, some insurance policies may also include sufficiently broadly-worded ‘loss of attraction’ or even ‘pollution’ provisions (mostly applying only to industrial businesses), which could also potentially trigger insurance coverage and, if so, financial assistance with paying rent and utilities during the pandemic.

[5]      Consider the doctrine of frustration of contract:

If there is no force majeure clause in the lease, a party is not necessarily without a remedy for an unforeseen event that causes a party to be unable to perform its obligations under the lease.

The doctrine of frustration provides that where the occurrence of an event results in a contract becoming fundamentally different in character from what the parties originally intended, the contract may be terminated without liability. However, a higher threshold must be met for the doctrine to apply, and its application means that the contract will be terminated (and not merely suspended for the duration of the event). Frustration will only apply where the event or circumstance was unforeseeable and not the fault of either party.

In Ontario, the relevant legislation is the Frustrated Contracts Act (the “FCA”). The FCA deals with the adjustment of rights and liabilities between the parties when a contract has been frustrated.   

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BUSINESSES IN CKL - BANKS ARE ROLLING OUT THE $40,000 LINE OF CREDIT - TIPS TO APPLY AND ENROLL

The big banks are now rolling out the procedure for applying for the new Canada Emergency Business Account (the "CEBA"), being the $40,000 line of credit available to registered businesses. 

For more information about CEBA and whether you qualify, check here: http://wardlegal.ca/31585663827865

To enroll for CEBA, you will likely be required to log into your bank's online banking for business account - enrollment will be online for most of the big banks. 

If you are not registered for online banking, you should do so on your bank's online registration page.

As part of the enrollment process, you will need: :

  1. to update your email and contact details with your bank, likely using your online for business profile, before starting your enrollment; 

  2. your business client card number; 

  3. your organization’s 2019 T4 Summary of Remuneration Paid statement - you can also contact the Canada Revenue Agency to have it re-issue your organization’s 2019 statement, if necessary; and 

  4. you will need to confirm that the person enrolling for CEBA has the authority to attest on behalf of your organization and legally bind the organization to the terms of the CEBA loan agreement.

More information about the CEBA is also available here: https://www.canada.ca/en/department-finance/economic-response-plan.html

 

 

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WORKING AT HOME BECAUSE OF COVID-19? TIPS AND HELP FOR DEDUCTING YOUR WORK-AT-HOME EXPENSES TO PAY LESS TAX

If you are incurring remote working expenses during the pandemic, you may be able to claim those expenses to reduce your tax payable under the Canada Income Tax Act.

Generally, employees with remote working expenses are paid either an allowance or they are reimbursed by their employer (including an “accountable advance”).

If you are paid an “allowance” for your home office expenses, the allowance should be deductible to you generally. If not, it would be a “taxable benefit” to you and not be deductible.

If you pay for your home office expenses initially, but your employer reimburses you afterwards, those expenses should be deductible generally, too.

In either case, you may be able to “deduct” your remote working expenses during the pandemic against your taxable income and, as a result, pay less tax. 

If you receive either an allowance or a reimbursement, which the Canada Revenue Agency deems a “taxable benefit” to you, your employer could also “gross up” your benefit by paying the additional tax payable by you – this is also a taxable benefit.

If you have remote working (i.e., home office) expenses while working remotely during the pandemic, here are some tips that you should consider, including speaking to your tax advisor for assistance and advice when you file your (now deferred) personal income tax form:

REIMBURSEMENTS BY YOUR EMLOYER FOR REMOTE WORKING EXPENSES:

  • you will need to give your employer your organized receipts (information) about your remote working expenses
  • your employer can reimburse you for those that are reasonable and related to you performing your employment duties
  • if an expense is a mix of both business and personal, your employer will likely have to report your reimbursement and you will likely be taxed on and for the personal component as a taxable benefit
  • if it is difficult to allocate the expense between business and personal, the CRA expects that a reasonable position will be taken by you and your employer
  • some mixed-use expenses cannot be tracked and documented accurately by actual receipts (i.e., mobile phone usage and/or data usage, unless used solely for business and, if so, your employer is unlikely to be able to reimburse you and, if it does, it is likely this expense may be deemed a taxable benefit to you
  • if your employer reimburses you for a “capital expense”, such as a new computer, printer, other hardware, or fixing up your home to accommodate you working remotely, you will be deemed to have received a taxable benefit, taxable to you, directly, but your employer is likely able to deduct the expense in full as a business expense, unless the CRA deems it unreasonable in the circumstances  
  • using a reimbursement, rather than an allowance, is likely preferable if you have one-time or irregular remote working expenses that you experience during the pandemic

MONTHLY ALLOWANCE FOR HOME OFFICE EXPENSES:  

  • if you receive a flat-rate allowance for your home office expenses, it will likely be a taxable benefit and, therefore, will be added to your income for tax purposes
  • if, for example, you earn an annual salary of $50,000, plus a remote office allowance of $50 monthly, the allowance would be added to your income, being $50,600
  • of the $50 monthly allowance, after you pay tax on it, you put in your pocket that amount, less your marginal tax rate on that amount, a net benefit to you (i.e., your “after-tax” allowance)
  • your employer should be able to deduct your allowance in full, as a business expense, unless the amount is deemed by the CRA to be unreasonable in the circumstances

DEDUCTING YOUR REMOTE WORKING EXPENSES:

To be able to deduct any of your remote working expenses against your taxable, employment income:

[1] your employment contract must require that you pay for the expenses at issue;

[2] your employer must sign a T2200 form, certifying the conditions required for your deductibility are met; and

[3] the expenses you claim for deduction must not have been reimbursed to you by the employer.

  • you may be able to deduct some of your remote working expenses against your taxable income on a reasonable basis
  • to deduct home office expenses: [a] your home office must be in the place where you principally perform your employment duties; and [b] your home office must be used exclusively during the period for which the expense relates (to earn income);   
  • examples: office supplies (stationary, toner, ink, cartridges, postage, etc.), some use of your mobile ‘phone expense, some use of your monthly Internet usage (i.e., data usage) and at least a portion of the expenses related to your remote working space at home (such as rent, electricity, maintenance, heating, etc., for only for your designated remote working area or space)  
  • you can only deduct the amount directly related to the performance of your duties of employ (a limitation on your deductibility)
  • effectively, to be