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

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

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

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

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

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

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

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

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

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

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

Avoid a lawsuit, be winter safe at your home.   

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

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

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

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

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

This is uniquely an Ontario-only legal initiative.

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

Not anymore.

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

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

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

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

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

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

Apology Act, 2009

S.O. 2009, CHAPTER 3

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

No Amendments.

Definition

1. In this Act,

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

Effect of apology on liability

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

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

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

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

Exception

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

Evidence of apology not admissible

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

Exception

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

Criminal or provincial offence proceeding or conviction

3. Nothing in this Act affects,

(a) the admissibility of any evidence in,

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

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

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

Acknowledgment, Limitations Act, 2002

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

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

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

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

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

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

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

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

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

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

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

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

Exceptions

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

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

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

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

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

Retroactive Effect

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

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

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

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

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

Accessible Websites Required for 2021

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

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

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

Compliance Reports due December 31, 2020 June 30, 2021

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

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

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

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

  • Address

  • Primary contact information

  • Number of employees

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

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

 

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

What is a peace bond?

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

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

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

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

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

Applying for a peace bond

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

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

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

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

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

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

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

Conditions in a peace bond

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

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

After you get a peace bond

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

You might also want to give a copy to others. 

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

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

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

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

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

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

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

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

What does the probate process look like?

Speaking generally, probate looks like:

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

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

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

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

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

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

Handling probate without a lawyer

Do you need a lawyer?

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

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

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

Things to consider

Questions to consider include:

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

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

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

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

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

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

Contentious probate

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

This could be:

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

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

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

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

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

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

 

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

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

They encourage creative ways to celebrate at home.

TRICK-OR-TREATING:

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

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

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

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

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

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

  • Wash hands and disinfect packages before eating candy

HANDING OUT CANDY:

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

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

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

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

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

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

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

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

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

HALLOWE’EN GET TOGETHERS:

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

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

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

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

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

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

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

  • provide hand sanitizer

  • Wash or sanitize your hands often

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

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

Did you know? 

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

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

  • Turkeys are actually a type of pheasant.

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

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

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

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

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

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

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

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

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

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

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

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

  • Only Tom turkeys "gobble".

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

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

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

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

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

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

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

  • The Native American name for turkey is "Firkee"

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

  • Mature turkeys have over 3,500 feathers.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  • washing your hands frequently and thoroughly; and

  • adhering to gathering limits and rules.

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

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

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

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

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

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

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

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

  • Are being reasonably accommodated under the Human Rights Code;

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

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

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

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

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

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

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

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

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

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

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

  • did not leave their employment voluntarily;

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

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

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

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

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

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

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

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

Credit: 

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

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

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

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

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

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

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

This includes:

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

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

  • vehicles that operate as part of a business or organization, including taxis and rideshares

Face coverings will not stop you from getting COVID-19, but may help protect others.

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

When you don’t have to wear a face covering

There are some situations when you do not need to wear a face covering.

You do not need medical documentation to support any of the exceptions below.

Children

Children do not have to wear a face covering indoors if they are younger than two years old.

Health and accommodations

You do not need to wear a face covering if you:

  • have a medical condition that inhibits your ability to wear a face covering

  • are unable to put on or remove your face covering without help from someone else

  • are receiving accommodations according to the Accessibility for Ontarians with Disabilities Act, 2005 or the Human Rights Code

Correctional institutions

You do not need to wear a face covering if you are in a:

  • correctional institution

  • custody program for young persons in conflict with the law

  • detention program for young persons in conflict with the law

Workplaces

You do not need to wear a face covering when you are working in an area that allows you to maintain a distance of at least 2 metres from anyone else while you are indoors.

Residences and dwellings

You do not need to wear a face covering in:

  • university dorms, retirement homes, long-term care homes or other similar dwellings except when you are in a common area and can’t maintain 2 metres from others

  • residences for people with disabilities (any residences listed in the definition of“residential services and supports”in subsection 4 (2) of the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008)

Performing or rehearsing

You do not need to wear a face covering while you are performing or rehearsing for a:

  • film or television production

  • concert

  • artistic event

  • theatrical performance

Temporarily taking off your face covering

You can take off your face covering temporarily:

  • to receive services that require you to take it off (for example, at the dentist, when receiving some personal care services such as facials, or when you have to verify your identity)  

  • to engage in an athletic or fitness activity

  • to eat or drink

  • as necessary for health and safety purposes

Fit

Non-medical masks or face coverings should:

  • fit securely to the head with ties or ear loops

  • maintain their shape after washing and drying

  • be made of at least two layers of tightly woven material (such as cotton or linen)

  • be large enough to completely and comfortably cover the nose and mouth without gaping

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

  • minimize errands to a single trip where possible

  • avoid close contact with others and keep at least two metres from others outside your household

  • wash your hands regularly (or using alcohol-based hand sanitizer if soap and water are not available)

  • practice proper cough and sneeze etiquette (for example, sneeze and cough into your sleeve and avoid touching your eyes, nose or mouth)

How to properly use face coverings

When wearing a face covering, you should:

  • wash your hands immediately before putting it on and immediately after taking it off (practise good hand hygiene while you are wearing the face covering)

  • make sure the face covering fits well around your nose and mouth

  • avoid moving the mask around or adjusting it often

  • avoid touching the covering while using it

  • not share it with others

Face coverings should be changed when they get slightly wet or dirty.

Remove or dispose of face coverings

When removing a face covering, you should:

  • throw it out into a lined garbage bin

  • wash your hands

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

Cleaning

If the face covering can be cleaned, you should:

  • put it directly into the washing machine or a bag that can be emptied into the washing machine

  • wash with other items using a hot cycle with laundry detergent (no special soaps are needed), and dry thoroughly

  • wash your hands after putting the face covering into the laundry

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

For more information, please read the Public Health Ontario (PHO) fact sheet.

Summary dos and don’ts

Do:

  • wash your hands immediately before putting on and immediately after taking off a face covering or face mask

  • practise good hand hygiene while you are wearing the face covering

  • make sure the face covering fits well around your nose and mouth

  • avoid moving the mask around or adjusting it often

  • avoid touching the covering while using it

  • change the face covering or face mask when it gets slightly wet or dirty

Do not:

  • share face coverings or face masks with others

  • place on children under the age of two years or on anyone unable to remove without assistance or who has trouble breathing

  • use plastic or other non-breathable materials as a face covering or face mask

Guidance for health care workers

Personal protective equipment (PPE) is a garment or device worn by health care workers to protect themselves from infection when they:

  • are in close contact with people who are infected

  • can’t maintain a safe physical distance

  • do not have access to a physical barrier

PPE includes:

  • surgical masks, also called procedural or medical masks, which prevent droplets and splashes from passing through the mask material  

  • respirators, such as the N95 respirator, which have a filter and seal around the nose and mouth to help prevent exposure to airborne particles

  • gowns

  • gloves

  • eye protection, such as goggles or face shields

The type of PPE you need depends on the type of health care work you do. Health care workers who provide direct care to patients with suspected or confirmed COVID‑19 need to:

  • follow droplet and contact precautions

  • use a surgical mask, isolation gown, gloves and eye protection

 

 

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CAN MY BOSS TELL ME WHEN I CAN TAKE MY VACATION? YES....

I just returned to work. Can my boss tell me when I can take my vacation this year? Yes. 

Because the COVID-19 pandemic has made travel impossible or risky to one’s health, employers may face employee requests to delay vacation time. In this Insight, we help employers in Ontario understand their rights and obligations when faced with such a request.

What is an Employee’s Vacation Entitlement?

Under the Employment Standards Act, 2000 (ESA)

Part XI of the ESA sets out the minimum requirements for an employee’s annual vacation:1

  • An employee whose period of employment is less than five years is entitled to two weeks of vacation time after the completion of each 12-month vacation entitlement year; and

  • An employee whose period of employment is five years or more is entitled to three weeks of vacation time after the completion of each 12-month vacation entitlement year.2

The “period of employment” is the period when the employee has been employed by the employer since the employee’s hire date. Inactive periods of employment (e.g., leaves or temporary lay-offs) do not affect the period of employment; both active and inactive periods of employment are included when determining an employee’s vacation entitlement.3

The ESA defines a “standard vacation entitlement year” as a recurring 12-month period beginning on the date of hire.4 An employer may establish an “alternative vacation entitlement year,” which is defined as a recurring 12-month period chosen by the employer and beginning on a date other than the first day of the employee’s employment.5 An employee is entitled to a pro-rated amount of vacation time for the period of employment (the "stub period") that precedes the first alternative vacation entitlement year.6

If an employee will not be taking vacation in complete weeks, the employer must base the number of vacation days to which the employee is entitled:

  • On the number of days in the employee’s regular work week; or

  • If the employee does not have a regular work week, on the average number of days the employee worked per week during the most recently completed vacation entitlement year.7

An employee must request permission, in writing, from their employer to take vacation time in days rather than weeks; if the employer agrees to this in writing, the employee may do so.8

Under an Employment Contract

The employer and employee may agree in an employment contract that the employee will be entitled to a vacation period greater than the employee’s statutory entitlement. If such an agreement is reached, the greater vacation period will prevail.9 Furthermore, vacation time can be taken prior to the expiry of the 12-month vacation entitlement year if the employer agrees, or the employee’s contract of employment clearly so provides.

Circumstances in Which an Employee May Forgo Vacation

If the Director of Employment Standards approves and an employee’s employer agrees, an employee may be allowed to forego taking vacation to which they are entitled under Part XI of the ESA.10

Determining the Timing of Vacation

The employer has the right and obligation to determine when an employee may take vacation for a vacation entitlement year, subject to the following rules:

  • The vacation must be completed no later than 10 months after the end of the vacation entitlement year for which it is given.

  • If the employee’s period of employment is less than five years, the vacation must be (a) a two-week period; or (b) two periods of one week each, unless the employee requests in writing that the vacation be taken in shorter periods and the employer agrees to that request.

  • If the employee’s period of employment is five years or more, the vacation must be (a) a three-week period; (b) a two-week period and a one-week period; or (c) three periods of one week each, unless the employee requests in writing that the vacation be taken in shorter periods and the employer agrees to that request.11

An employer may not schedule an employee’s vacation during the statutory notice of termination period, unless the employee, after having received the notice, agrees to the inclusion of the vacation time during the statutory notice period.12

Timing of Vacation if Employer Establishes Alternative Vacation Entitlement Year

If an employer establishes an alternative vacation entitlement year for an employee, the employer has the right and the obligation to determine when an employee may take the vacation time earned for the stub period.13 However, the vacation must be completed no later than 10 months after the start of the first alternative vacation entitlement year. Unless the employee requests in writing that the vacation be taken in shorter periods and the employer agrees to that request, if the vacation entitlement is equal to two or more days, the vacation must be taken in a period of consecutive days. However, if the vacation entitlement is equal to or more than five days, at least five vacation days must be taken in a period of consecutive days and the remaining vacation days may be taken in a separate period of consecutive days.14

Bottom Line for Employers

During the COVID-19 pandemic and otherwise, employers in Ontario have the right and obligation to determine when an employee may take vacation. Employers are not required to allow an employee to delay their vacation, but may allow an employee to do so. However, should an employer decide to allow an employee to delay their vacation, rules set out in the ESA apply. For a standard vacation entitlement year, the employer must ensure that the employee’s vacation is completed no later than 10 months after the end of the vacation entitlement year; for an alternative vacation entitlement year, the employer must ensure that the vacation is completed no later than 10 months after the start of the first alternative vacation entitlement year. In addition, the employer must not schedule the employee’s vacation during the statutory notice of termination period unless the employee, after having received the notice, agrees to the inclusion of the vacation time during the statutory notice period.

Credit

Littler LLP - Rhonda B. Levy and Barry Kuretzky, published on Lexology.com on October 6, 2020. 

 

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$#@&% COLLECTION AGENCY - CAN THEY DO THIS TO ME? WHAT ARE MY RIGHTS? YOUR ANSWERS.......

Can this *&$@*# collection agency do this? What are my rights?

In Ontario, collection agencies must be registered with the Government of Ontario and must follow the rules set out in Ontario’s Collection and Debt Settlement Services Act.

When a collection agency contacts you to collect money that you may owe or when you can’t pay a debt, they must follow those rules.

If you’re contacted:

Before a collection agency can contact you they need to send you a written notice through regular mail (email doesn’t count).

This notice must include:

  • the name of the person or business that says you owe them money (known as the creditor)

  • the amount of money that the creditor says you owe

  • the name of the collection agency and a statement that the creditor has asked them to collect the debt

After sending the notice, the agency must wait six days before they can contact you in person or by phone.

After their first conversation with you, an agency can’t contact you more than three times in a seven-day period without your consent.

“Contact” means the agents must actually speak with you, email you or leave you a voice mail. If you don’t answer the phone and the agents don’t leave a message, it doesn’t count as a contact. A letter sent by regular mail also does not count as a contact.

If the debt is mistake or an incorrect amount:

If you think that they have the wrong person or that the debt is incorrect:

Contact the collection agency and explain. They must take reasonable steps to make sure you are the right person to contact about the debt:

• If you are not the right person, they can’t keep contacting you.

• If you are the right person, but the debt is incorrect, you can take the following steps:

  1. if you already paid the debt, contact the collection agency and, if applicable, original creditor to correct the error. Provide supporting documentation if available.

  2. check your credit report to see if the amount is correct and write to the credit reporting agency and provide the correct information.

A collection agency cannot do any of the following to you, or anyone else:

• phone on holidays, Sundays (except between 1 p.m. and 5 p.m.), or on any other days between 9 p.m. and 7 a.m., unless you request it;

• use threatening, profane, intimidating or coercive language;

• use undue, excessive or unreasonable pressure; or harass you;

• contact you more than three times in seven days on behalf of the same creditor, subject to certain exceptions;

• give false or misleading information to any person;

• contact you in a way you told them to stop using because it cost you money; or

• charge you any fees, other than for non-sufficient funds on cheques.

A collection agency can contact the following people but only in limited circumstances:

  1. Your employer:

• once only to confirm your employment, business title or business address;

• if your employer has guaranteed the debt and the contact is about that guarantee;

• if it’s about a court order or an automatic salary deduction (wage assignment); or

• if you have given the collection agency written permission.

2.Your spouse, family or household member, relative, neighbour, friend or acquaintance:

• to get your contact information if the agency doesn’t have it already;

• if you asked the agency to discuss the debt with that person; or

• if that person has guaranteed the debt and the contact is about that guarantee.

Ask the right questions when a collection agency contacts you, such as:

  • may I have your Ontario registration number?

  • have you sent me a written notice with my creditor’s name and the amount of money that I owe?

  • how often will you be contacting me?

If you’re contacted by mistake

A collection agency can’t keep contacting you if:

  • you send a registered letter to the agency saying that you dispute the debt and suggest the matter be taken to court

  • you (or your lawyer or paralegal) send a registered letter with your lawyer or paralegal’s contact information telling the agency to communicate only with your lawyer or paralegal

  • you have told them that you are not the person they are looking for, unless the agency has taken reasonable steps to make sure you are the person that they should be contacting

A collection agency can’t contact your spouse, family member, a relative, neighbour or friend except to get your address and telephone number, unless:

  • the person has guaranteed the debt

  • you have given permission for the person to be contacted to act on your behalf

Also, a collection agency can’t:

  • give false or misleading information to any person

  • recommend that a creditor take legal action against you without sending you notice first

File a complaint

If a collection agency has broken the rules, you can send the agency a letter and include what you believe they did wrong and that you expect them to follow the law

If this does not resolve the problem, you can file a complaint. Learn more how you can do this at http://www.ontario.ca/consumers/filing-consumer-complaint

If you file a complaint, be sure to include documents and evidence to support it. For example, you can include:

  • all letters, emails and faxes that you sent or received from the collection agency

  • a record of the date, time and details of the phone calls or messages you received

  • a photograph of your telephone display showing the collector’s phone number and the time they called

  • digital recordings of phone messages or conversations

  • letters from your employer, co-workers, family or friends confirming that the collector contacted them

Tips to deal with debt

If you are contacted by a collection agency, try to pay the money you owe as soon as possible. Otherwise, the problem could get worse. If you can’t pay the full amount that you owe at once, try to arrange monthly payments.

The person or business that you owe money to might:

  • take you to court and get a judgement against you, allowing them to seize your assets or take part of your salary

  • sell your debt to another person (your rights under Collection and Debt Settlement Services Act would not apply unless that person hires a collection agency)

  • report the debt to a consumer reporting agency, which could lead to you having a bad credit record

When paying off your debt, make sure to:

  • never send cash and always get a receipt or proof of payment

  • not bounce cheques and miss payments

  • contact the collection agency in writing if your financial circumstances change or you can’t make payments

  • contact the agency and the original creditor if there is a mistake in your account

  • deal only with the collection agency to avoid any confusion, if everything is correct

Where to get help

If your financial problems are getting out of hand, consider contacting a credit counselling service for help through:

  • The Ontario Association of Credit Counselling Services

  • Credit Counselling Canada

  • The Canadian Association of Insolvency and Restructuring Professionals (CAIRP)

Credit counsellors are different than debt settlement services. Debt settlement services will charge you a fee to help you negotiate a plan to repay your debts. Credit counsellors are often not-for-profit organizations.

Watch out for debt settlement companies that:

  • say they can reduce your debt by 50% or more

  • charge large, upfront fees

  • claim that if you work with them there will be no negative effect on your credit report

  • claim that their program is approved by the government

  • say they can get collection agencies to stop calling you

Always take the time to understand your contract.

Remember that some of these companies will charge a cancellation fee if you want to end your contract before the end of its term.

They may also not refund any money that you paid them.

 

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WHAT IF MY KID FAILS THE MORNING SCREENING? DO WE GO TO SCHOOL? WHAT DO WE DO? YOUR ANSWERS......

WHAT IF MY KID FAILS THE VIRUS SCREENING IN THE MORNING?

Firstly, if your child has a chronic medical condition, are the child’s symptoms worse or different than normal?

If the same, your kid may attend school (with stable symptoms of a known chronic condition), but speak to your family doctor if you have any concerns.

If yes, call the school and inform them of your kid’s illness. Your kid should stay home and seek medical advice.

However, if your kid was tested they are required self-isolate while the results are pending. If the results are negative, and your kid has no known exposure, attend school when the symptoms are resolved for 24 hours.

If it has been recommended to be tested, but you did not get tested, and if no alternative diagnosis was given, your kid should self-isolate for 14 days from the onset of the symptoms.

Source: https://www.hkpr.on.ca/

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WHAT IF THERE IS A SCHOOL OUTBREAK? WHO DOES WHAT? WHO'S ON FIRST? YOUR ANSWERS.......

What happens if there is a local school outbreak? Who does what? Who's on first? 

Firstly, the “Local Public Health Unit” (“LPHU”) may declare an outbreak if it determines two or more lab-confirmed COVID-19 cases in students/staff/visitors in a school with an epidemiological link within a 14-day period where at least one case could have reasonably acquired their infection in the school (including transportation and before and after school care).

Secondly, if so……..

The Health Unit will:

  • notify District School Board (DSB) COVID-19 Lead and school principal of outbreak declaration and request further information;  

  • determine which cohort(s) must isolate and indicates partial or full school dismissal;

  • communicate cohort isolation requirements and outbreak masures and enhanced cleaning requirements to the District School Board COVID-19 Lead and school principal;

  • post outbreak notice on website (included in cumulative total/dashboard);

  • conduct contact tracing of determined close contacts of positive case and provides guidance on testing and isolation; and

  • notify Dstrict School Board COVID-19 Lead and school principal when safe return to school is indicated.

The school should:

  • compile information needed in relation to staff/student cohort(s) and provides to LPHU, including:

• attendance records;

• class/cohort lists and seating charts;

• before/after school child care lists;

• transportation lists and seating charts;

• current contact info for students/staff;

• special assignments/programs/activities (e.g., Special Education); and

• records of essential visitors;

  • distribute parent communications as directed by District School Board and in collaboration with LPHU; and

  • implement any/all outbreak measures recommended by LPHU including:

• posting outbreak signage at entrance and affected areas;

• informing outside agencies that use the school of the outbreak;  

• only allowing essential visitors into the school;  

• further minimizing the movement of staff between cohorts;

• limiting student activities to their required cohorts and discontinuing extracurricular activities, as much as possible;  

• restricting all staff (including school, transportation, staff from home care agencies or others that provide medical services to those in school) from working in other schools; and

• for social settings outside of the school recommend to staff, students and their families, adherence to the social bubble (size based on current provincial recommendations).

The School Board should:

  • notify School Principal of outbreak; and  

  • considers communication linking to outbreak posting on school board website.

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