NEW COVID ALERT APP NOW AVAILABLE - CKL BEING USED AS A TRIAL BEFORE NATIONAL ROLL-OUT. WHAT YOU NEED TO KNOW TODAY ABOUT THE APP............

The new, federally-developed COVID Alert app is now available in the City of Kawartha Lakes and aims to help stop the spread of the novel coronavirus.

The voluntary app tells users if or when they have been in close contact with another user who has tested positivie for the COVID-19 virus.

It uses Bluetooth technology, and if someone does get a positive test, they have to enter a code for alerts to be sent to other users.

The app is not mandatory for Canadians, and can be downloaded voluntarily from Google’s Play Store and Apple’s App Store.

Officials have stressed that no personal data will be collected.

Ontario is being used as a trial bed before a nationwide roll-out

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NEW RULES FOR CKL BARS AND RESTAURANTS - WHAT YOU NEED TO KNOW TODAY.......

The Ontario government, in consultation with the Associate Chief Medical Officer of Health, has amended orders O. Reg 364/20: Rules for Areas in Stage 3 and O. Reg. 263/20: Rules for Areas in Stage 2, under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, implementing additional measures for restaurants, bars, and other food or drink establishments, as the province carefully and gradually reopens.

In order to keep patrons of restaurants, bars, and other food or drink establishments safe, the amended orders will implement the following measures:  

  • All patrons will be required to be seated at all times, in both indoor and outdoor areas, with limited exceptions; and

  • Bars and restaurants (and also tour boat operators) in Ontario will be required to keep client logs for a period of 30 days and to disclose the client logs to the medical officer of health or an inspector under the Health Protection and Promotion Act on request, which will support case and contact tracing.

  • Complementary changes are being made in respect of existing provisions relating to tour operators and tour boat operators.

The Chief Medical Officer of Health and other public health experts continue to closely monitor the evolving situation to advise when public health measures or restrictions can be further loosened or if they need to be tightened.

It remains critically important for everyone to continue following public health advice as more businesses and services reopen in Stage 3. This includes practising physical distancing with those outside your household or social circle, wearing a face covering when physical distancing is a challenge or where it is mandatory to do so, staying home when ill, and washing your hands frequently and thoroughly.

The amendments read:

SCHEDULE 2
SPECIFIC RULES

Food and drink

Restaurants, bars etc.

1. (1) Restaurants, bars, food trucks, concession stands and other food or drink establishments may open if they comply with the following conditions:

1.  No buffet-style service may be provided.

2.  Patrons must be seated when eating or drinking at the establishment.

Note: On July 31, 2020, paragraph 2 of subsection 1 (1) of Schedule 2 to the Regulation is revoked and the following substituted: (See: O. Reg. 428/20, s. 3 (1))

2.  Patrons must be seated at all times in any area of the establishment in which food or drink is permitted except,

i.  while entering the area and while moving to their table,

ii.  while placing or picking up an order,

iii.  while paying for an order,

iv.  while exiting the area,

v.  while going to or returning from a washroom,

vi.  while lining up to do anything described in subparagraphs i to v, or

vii.  where necessary for the purposes of health and safety.

3.  The establishment must be configured so that patrons seated at different tables are separated by,

i.  a distance of at least two metres, or

ii.  plexiglass or some other impermeable barrier.

4.  No person shall dance, sing or perform music at the establishment except in accordance with subsection (2) or (3).

Note: On August 7, 2020, subsection 1 (1) of Schedule 2 to the Regulation is amended by adding the following paragraph: (See: O. Reg. 428/20, s. 3 (2))

5.  The person responsible for the establishment must,

i.  record the name and contact information of every patron who enters an indoor or outdoor dining area in the establishment, other than patrons who temporarily enter the area to place, pick up or pay for a takeout order,

ii.  maintain the records for a period of at least one month, and

iii.  only disclose the records to a medical officer of health or an inspector under the Health Protection and Promotion Act on request for a purpose specified in section 2 of that Act or as otherwise required by law.

Quick Facts

  • Businesses and sectors unable to open or facing significant difficulties in operating under the current restrictions are invited to visit Ontario.ca/reopen to submit a reopening proposal. Businesses are also encouraged to use the government’s guide to develop a workplace safety plan. Government officials will work collaboratively with them on a plan to safely reopen, where feasible. The plan will be considered by public health officials and the Ontario Jobs and Recovery Committee as part of Ontario’s approach to Stage 3.

  • Some local municipalities may have enacted by-laws or local medical officers of health may have issued Section 22 orders under the Health Protection and Promotion Act, mandating the use of face coverings, and other restrictions, in some settings. Other medical officers of health may have mandated the use of face coverings, and other restrictions, through reference to emergency orders. Refer to local municipal or public health unit webpages for more information.

  • For questions on restrictions that will remain in place during Stage 3, review the Stage 3 Emergency Order on the emergency information portal or call the Stop the Spread Business Information Line at 1 888 444-3659.

  • Over 180 guidance resources are available to businesses to help them safely reopen and keep customers and workers safe.

  • The province has set up a Workplace PPE Supplier Directory, where employers can find suppliers who sell personal protective equipment (PPE) and other supplies to support a safe reopening of their workplaces.

  • Testing is available at any of the province’s 144 assessment centres currently open. To find your closest assessment centre, please visit Ontario.ca/coronavirus.

  • The province has developed a practical step-by-step guide to help Ontarians as they safely develop and join a social circle.

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CAN YOU STILL REFUSE TO WORK DUE TO CHILD CARE AS OF SEPTEMBER 1, WHEN CHILD CARE SERVICES RE-OPEN. NO. THE END IS NIGH. WHAT YOU NEED TO KNOW TODAY.........

Child care services and centres will be fully operational again as of September 1. 

More information on this is available here: http://wardlegal.ca/31596034289334 

So, things will soon change for parents who do not attend work due to child care responsibilities - in fact, that ability will end as of September 1.  

As workplaces re-open, employers are getting all kinds of objections from employees about coming back to work. Common among these are childcare responsibilities. While some daycares and day camps are operating, things are far from normal. What obligation do employers have to accommodate refusals to come back to work due to childcare responsibilities?

Employee Protection Under the Infectious Disease Emergency Leave

In Ontario, employees who claim they cannot work due to childcare responsibilities may have job protection under the Infectious Disease Emergency Leave (IDEL). The IDEL provides job protection to employees who need to take a leave from work to care for their children whose school or daycare is closed because of COVID-19. The Ministry of Labour Guide on this leave also includes day camps being cancelled as a reason for the leave so we can be sure that the protection is meant to be expansive.

If an employee’s normal childcare arrangements are a no-go because of COVID-19 they will be entitled to this leave. The IDEL requires the employer to give the employee a leave of absence, to continue their benefits and to reinstate the employee when they return from the leave to their job or a comparable job if their job no longer exists. The employer does not have to pay the employee during the leave.

The IDEL can also be taken in different ways, including partial days. This essentially allows an employee to have flexible work. If an employee is able to have their child cared for by a relative for a partial day and can work for a partial day, they have the protection of the leave for this adjustment to their schedule.

If COVID-19 is no longer deemed to be a designated infectious disease under O. Reg 66/20 then the employee’s right to the leave will end. The employee’s right to the leave will also end if the triggering event ends – for example, the employee’s child’s daycare re-opens.

But Their Daycare IS Open!

If the employee’s regular childcare IS available then they will not have the ability to claim protection under the IDEL for this reason. Note that there are other reasons to claim IDEL protection – such as being sick with COVID-19, caring for someone sick with COVID-19 or quarantining after travel or possible exposure to COVID-19 – and that as an employer you cannot ask the employee for medical evidence to substantiate the reasons for the leave. A request for evidence reasonable in the circumstances is allowed. So, if the employee claims to have been travelling it would be reasonable to require them to prove this by producing a plane ticket, for example.

Back to childcare. If the employee’s regular childcare is available, and they continue to state that they cannot come to work due to childcare responsibilities, then the employer will need to consider whether human rights protection might legitimately be engaged such that the employer needs to accommodate the employee.

There are two lines of jurisprudence that consider the test for family status accommodation. In one, Canada (Attorney General) v. Johnstone, 2014 FCA 110, the employee must show that:

  1. that a child under his or her care and supervision;

  2. that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;

  3. that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and

  4. that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

In the other, Misetich v. Value Village Stores Inc., 2016 HRTO 1229 the individual must show that the employer’s requirement (say, coming to work) results in a “real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship,” and that while each case is contextual the employee may be required to “consideration of the other supports available.”

Regardless of which test is followed – the law is somewhat unsettled on this point – it is clear that the employee needs to consider the options available to him or her and that he or she cannot simply choose not to send the child to daycare out of personal preference. That being said, the situation may be different if there is a great health risk to a family member. This could engage another human right ground! Woohoo!

Takeaways

While we can’t say with certainty how the courts may treat all of the employment issues and scenarios COVID-19 has created, it’s likely that employees cannot simply refuse to work where childcare options are available to them and they wish to stay home – and have their job held for them to come back to – out of personal preference.

Credit: 

Hilary Page, Spring Law (via Lexology.com on July 31, 2020)

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SCHOOL RE-OPENING PLAN FOR SEPTEMBER - A SUMMARY.

In-class instructions at Ontario schools will resume this fall, with additional protective measures put in place to protect against the spread of COVID-19.

Among the plans announced by the Province:

  • Elementary schools (Kindergarten to Grade 8) will reopen provincewide, with in-class instruction five days a week.

  • Secondary schools with lower risk will reopen with a normal daily schedule (five days a week), while most secondary schools will start the school year in an adapted model of part-time attendance with class cohorts of up to 15 students alternating between attending in-person and online.

  • Students from Grade 4-12 and school staff must wear non-medical masks or face coverings. Masks will be optional for students in Kindergarten to Grade 3.

  • Parents will have the option of not sending their children to school, and instead have them enrolled in online learning at home

  • Hiring additional cleaning/custodial staff.

  • Enhanced cleaning/disinfecting of classrooms and schools.

  • Hiring of 500 Public Health Nurses to liaise/assist schools with adjusting to COVID protocols

  • Providing Personal Protective Equipment to teachers and school staff

  • Putting in place COVID-19 screening for students and school staff

For more specifics on school reopenings, click on the following:

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CHILD CARE WILL BE AT 100% AS OF SEP. 1. BUY MORE NON-MEDICAL MASKS.

Today, the Ontario government announced its plan to allow licensed child care centres across Ontario to open at full capacity starting September 1, 2020.

EarlyON Child and Family Centres will also be permitted to reopen with in-person programming along with before- and after-school programs for school aged children which will be permitted to operate with standard ratios and maximum group size requirements.

All of these programs will be subject to health and safety protocols in order to keep kids safe.

The Ministry of Education will continue to work closely with municipal service managers, First Nations, and childcare operators to maximize capacity and access for families over the coming weeks. This includes revised health and safety operational guidance, additional funding parameters, and direction on providing notice to parents for placements. Licensees will continue to be required to maintain ratios and group sizes as set out under the Child Care and Early Years Act, 2014 (CCEYA).

The government will continue to follow the advice of the Chief Medical Officer of Health and the COVID-19 Command Table to ensure the health and safety of the children and staff is never compromised as childcare capacity expands to 100%. The enhanced health and safety procedures that were put in place as part of the re-opening plan, will remain in place, and in some instances strengthened, to protect children, staff and families, including:

  • Requiring all child care staff to wear masks at all times, effective September 1;

  • Ensuring frequent cleaning of child care centres;

  • Screening of children and staff before entering a childcare facility;

  • Maintaining attendance records for rigorous contact tracing and coordination with local public health authorities;

  • Ensuring frequent hand washing and proper hand hygiene for children and staff; and

  • Establishing clear and rigid case management protocols in the event a staff member or child becomes ill, or tests positive for COVID-19.

Ontario will also provide additional funding, with support from the federal government through the Safe Restart Agreement, to help child care operators and EarlyON Child and Family Centres purchase cleaning supplies, PPE and support staffing needs related to new procedures.

Quick Facts

  • Licensed child care centres will be permitted to operate at full capacity beginning September 1, 2020. More information about reopening protocols and guidelines will be shared in the coming days.

  • Families whose children attended a licensed child care centre immediately before the emergency was declared must be given at least 14 days notice to accept a placement available on or after September 1, 2020.

  • From March 22 – June 26, 2020, the government provided Emergency Child Care to health and front line workers free of charge. On April 10th, 2020, the government committed to protecting parents from financial hardship during COVID-19 by preventing operators from charging fees while child care centres were closed. On May 9th, 2020 the government announced supports to licensed child care providers to ensure they remain sustainable and ready to open when parents return to work. On June 9, 2020, the government announced its plan to reopen child care centres across the province. On June 12, 2020, child care centres were permitted to reopen once strict health and safety measures had been met.

  • Funding is being provided to support enhanced cleaning costs and health and safety requirements set out to support the reopening of child care centres, as well as the continued stabilization of the sector.

  • The government of Ontario will supply face coverings to licensed child care settings and EarlyON locations.

  • There are over 5,500 child care centres and 124 licensed home child care agencies across Ontario.

  • Parents and guardians have until August 31, 2020 to apply for Support for Families. Under this program, parents or guardians of children between 0-12 years old, or up to 21 years old for children and youth with special needs, are eligible for a one-time payment, per child, to purchase educational materials to support learning at home.

  • To date, over 1.6 million families have benefited from the Support for Families program.

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AN ISOLATED SEXUAL, INAPPROPRIATE COMMENT TO ME IN THE WORKPLACE. IS IT SEXUAL HARASSMENT? WHAT IS THE TEST? WHEN SHOULD I COMPLAIN?

You and a few co-workers are out to dinner after a lengthy work week.

During the event, your co-worker, who is also more senior than you and managerial, quietly says to you:

“You will have to tell me if this is a misstep, but I’m crazy about you”.

You tell your co-worker this comment is unwelcome and you discuss it briefly.

Your co-worker acknowledges it was inappropriate and expresses regret about making it to you.

Your co-worker makes no further advance and you and your co-worker continue to have a professional relationship, but you remain uncomfortable due to the initial comment.

Is it sexual harassment, contrary to Ontario’s Human Rights Code?

The legal test for sexual harassment is conduct that is of a sexual nature, unwelcome and resulting in adverse consequences for the complainant.

Clearly the comment to you was sexual in nature and unwelcome and, consequently, you were both distressed and uncomfortable.

The real issue is whether the subjective, negative feelings you experienced constitute an “adverse impact” on you or your employ within the meaning of human rights law.

In this case, which actually happened, the comment was not considered sexual harassment.

The Tribunal assessed the circumstances surrounding the comment and found the comment was an isolated incident, not accompanied by any other advances and was not vulgar or crude.

Although there was a power imbalance in the relationship and inherent vulnerability, the dynamics were balanced somewhat by the parties` collaborative professional relationship.

There was no abuse of power. The Tribunal accepted that the employee experienced emotional distress as a result of the comment, but held that all circumstances must be considered on an objective basis. The Tribunal found there had been no adverse effect on their professional working relationship.

The Tribunal noted the complainant’s interpretation of events was coloured in hindsight and emphasised the “large gap between a comment that is inappropriate, and deserving of an apology, and one that is inherently such an affront to the person’s dignity that it rises to the level of sexual harassment as defined by the Code”.

What does this mean?

The circumstances, objectively, will be considered. Not only will the subjective interpretation and interpretation of the recipient be properly reviewed, but all of the circumstances, viewed objectively, will also be considered, particularly where there is a single, isolated incident in the workplace.

In this case, those did not warrant a finding of sexual harassment.

The decision also indicates that appropriate efforts to address the inappropriate comment will be important.

The case:

The Employee v. The University and another (No.2), 2020 BCHRT 12

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WHAT'S HAPPENING WITH THE "STATE OF EMERGENCY" - ARE WE, OR NOT? WHAT'S OUR CURRENT STATUS?

So, what is happening with Ontario’s declaration of emergency for COVID-19?

It’s ended, but the containment rules and directives continue.

The declaration of emergency was made initially under the Emergency Management and Civil Protection Act (“EMCPA”). Recently, the provincial declaration of emergency was extended to July 24, 2020, while existing emergency orders were extended to July 29, 2020. However, recognizing that there will likely be a continued need to manage the public health risks and effects of COVID-19 well beyond the declared emergency, on July 21, 2020, the Ontario government passed Bill 195, now known as the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (the “Act”).

 End of Declared Emergency

The Act provides that the COVID-19 declared emergency is terminated once it comes into force unless the emergency has been terminated beforehand. The Act came into force on July 24, 2020, which coincides with the termination of the state of emergency.

Continuation and Amendment of Emergency Orders

The Act also provides that emergency orders made under section 7.0.2 or 7.1 of the EMCPA that are in force on the date the Act came into force will cease to be orders under the EMCPA but will be continued as valid and effective orders under the new legislation. The orders are continued for an initial period of 30 days, but the Act allows for the extension by the Lieutenant Governor in Council for further periods of no more than 30 days at a time.

Bill 195, as it was passed, does not allow for the creation of new emergency orders under the Act. However, the continued orders may be amended by the Lieutenant Governor in Council, but only if the amendment requires persons to act in compliance with the advice, recommendations or instruction of a public health official and the amendment relates to one of the following subject matters:

  • closing or regulating any place, whether public or private, including any business, office, school, hospital or other establishment or institution;

  • providing for rules or practices related to workplaces or the management of workplaces, or authorizing the person responsible for a workplace to identify staffing priorities or to develop, modify or implement redeployment plans or rules or practices that relate to the workplace or the management of the workplace, including credentialing processes in a health care facility; or

  • prohibiting or regulating gatherings and organized public events.

Bill 195, as it was passed, also provides that some orders cannot be amended, including, for example: Order 210/20 (Management of Long-Term Care Homes in Outbreak), Order 240/20 (Management of Retirement Homes in Outbreak) and Order 241/20 (Special Rules Re Temporary Pandemic Pay).

The Act limits the authority to extend or amend emergency orders continued under it to a period of one (1) year, subject to further extension by the legislature. It provides for oversight of that authority through regular, mandated reporting wherein any extension of an emergency order under the Act would have to be justified. Additionally, it addresses enforcement and compliance through the same type of provisions on offences and penalties as those already set out under the EMCPA.

It is important to note that despite the provincial declaration of emergency coming to an end, it will nonetheless remain possible for an individual head of the council of a municipality to declare that an emergency exists in any part of their municipality (or to continue such a declaration) and to therefore exercise the powers granted to municipalities in such circumstances by the EMCPA. It also continues to remain possible for Ontario’s Chief Medical Officer of Health or for local medical officers of health to exercise the powers granted to them by the Health Protection and Promotion Act.

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I'M NOT HAPPY WITH THE JUDGMENT - SHOULD I APPEAL IT? WHAT GROUNDS DO I NEED TO APPEAL? WHAT SHOULD I LOOK FOR BEFORE I APPEAL?

So, you endured the litigation process and received a judgment.

But you’re not happy with it, as many experience.

Statistically, most cases are never appealed and those that are face a high hurdle.

However, some succeed, of course, clarifying the law or potentially overturning the decision of the lower, trial Court.

The obvious appeals involve a Judge misinterpreting or misapplying the law – those types of appeals are more straightforward, but also fairly rare.

What about other grounds available to you?

If you think you have been unfairly treated, judicially speaking, here is how you should examine whether you should consider an appeal:

1.Were the parties able to exercise all their procedural rights?

One of the myths of the law is to think that a good lawyer is a cunning person capable of planting annulments at their convenience, throughout the process, which end up defining the trial, in the last moments. Betting on such a strategy may prove unsuccessful. The decisive factor to point out a process as flawed is that one of the parties has really been unable to seize any of its stages.

Did the Judge listen to both parties before adopting a resolution? Did the judge timely notify the start and end of each stage? Was there access to evidence from the opposing party? The central issue is whether one of the parties suffered a defenseless situation. Something important to assess on this point is that the appeal will correct procedural defects. Thus, an appeal that thrives under this argument will guarantee a fair trial, but not win it directly.

2.Did you enter all the necessary evidence to the trial?

Da mihi factum, dabo tibi ius" (give me the facts, I will give you the right) is a phrase that perfectly sums up the work of all the judges around the world. Now, such facts are made available to the Judge based on the evidence that enters the trial as long as they meet certain requirements. It must be related to any of the facts discussed in court, must be sufficient and useful to prove them.

The general rule is that the entry of evidence is allowed and only failure to comply with any of these requirements leads to its rejection. In this sense, it is necessary to attend to two elements that could go unnoticed. First, the interested party must expressly record in the corresponding act the disagreement with the exclusion of evidence. Second, the rejected evidence will be produced at that stage, making it critical to argue how this new element should modify the award.

3.Did the judge do a correct analysis of the evidence?

A judicial process is a search for the truth, under a certain method guided by logic, experience and psychology. Thus, the judicial reasoning expressed in an award should follow objective and verifiable parameters. It is important to know the principles under which the evidence was analyzed and to be clear about what should be considered as accredited according to them, to access a true review of the evidentiary analysis.

The first step to effective persuasion is clarity. Thus, it is essential to identify what is the error in the evidentiary examination and identify which premise (logic, experience or psychology) is the one that was violated when the Judge declared that something was proven (or not). The foregoing provides clarity to the Court of Appeals on the point whose review is requested and, furthermore, demonstrate why the meaning of the award should be modified.

Credit:

Ruben Rivas, Torres Law (via Lexology on July 29, 2020).

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OUR NEW CHILD WELFARE SYSTEM - ON ITS WAY!

The Ontario government released its plan today to modernize the child welfare system. The strategy focuses on strengthening families and communities through prevention, early intervention and seeking more permanent homes for children and youth in care when they cannot stay in their own homes or communities.

The strategy to redesign the child welfare system has five pillars that focus on:

  • Strengthening family well-being through community-based prevention services that keep children safe in family-based settings;

  • Improving the quality of residential care provided to children and youth;

  • Promoting the development of stable and lifelong connections and supports for youth, with a focus on education and employment opportunities;

  • Improving the adoption experience and focusing on family-based options over group care where appropriate; and

  • Creating a more efficient and effective child welfare system that is financially sustainable.

The new child welfare strategy was developed with input from youth, families, caregivers, First Nations, Inuit and Métis partners, lawyers, community organizations, frontline workers and child welfare sector leaders. They participated in over 100 engagement sessions over the past year and provided over 3,000 responses to an online survey.

Quick Facts

  • More than 12,000 children and youth are in the care of children’s aid societies in Ontario. This includes children and youth in kinship care, foster care and group care placements.

  • In addition to children and youth in care, those in need of protection may be placed with a family member or community caregiver, without coming into the care of a society. This is known as kinship service.

  • The Ontario government invested $5 million this year to enhance access to prevention-focused customary care for Indigenous children and youth. Customary care is the culturally-specific care and supervision of a First Nations, Inuit or Métis child by a person who is not the child’s parent. Customary care allows children and youth to remain closely connected to their culture and community.

Background Information

Additional Resources

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CRA EXTENDING TAX DEADLINES TO SEP 30 - PAYMENTS AND FILING RETURNS.

Due to COVID, the CRA is further extending the deadlines for making tax payments, paying interest and for filing returns: 

Payment deadline extension

The CRA is extending the payment due date for current year individual, corporate, and trust income tax returns, including instalment payments, from September 1, 2020, to September 30, 2020.

Penalties and interest will not be charged if payments are made by the extended deadline of September 30, 2020. This includes the late-filing penalty as long as the return is filed by September 30, 2020.

Interest on Existing Tax Debt

The CRA is also waiving interest on existing tax debts related to individual, corporate, and trust income tax returns from April 1, 2020, to September 30, 2020 and from April 1, 2020, to June 30, 2020, for goods and services tax/harmonized sales tax (GST/HST) returns. While this measure for existing tax debts does not cancel penalties and interest already assessed on a taxpayer’s account prior to this period, it ensures that a taxpayer’s existing tax debt does not continue to grow through interest charges during this difficult time. This measure provides immediate relief to impacted taxpayers.

Filing returns

The previously extended filing due dates for individual, corporate, and trust income tax returns remain unchanged. However, recognizing the difficult circumstances faced by Canadians, the CRA will not impose late-filing penalties where a current year individual, corporation, or trust return is filed late provided that it is filed by September 30, 2020.

The CRA encourages everyone to file their individual, corporate and trust returns as soon as possible, even though payment deadlines are being extended. This is particularly important for individuals receiving credits and benefits, such as the Canada Child Benefit.

To ensure Canadians continue to receive their benefits and credits during the COVID-19 pandemic, the CRA temporarily suspended interruptions for those who were unable to file their income tax and benefit return by the June 1 deadline. Currently, if a 2019 individual tax return has not been assessed, the CRA is calculating benefits and/or credits for the July to September 2020 payments based on information from 2018 tax returns. However, if 2019 individual tax returns are not received and assessed by early September 2020, estimated benefits and/or credits will stop in October 2020 and individuals may have to repay the amounts that were issued as of July 2020.

The CRA has helpful information and a step-by-step guide to help Canadians complete their taxes. The CRA tax processing system is fully operational and returns are being processed quickly to support Canadians in getting their refunds and ensuring continuity of their benefits.

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EMPLOYERS AND EMPLOYERS - BE AWARE OF THE CONSEQUENCES OF THE END OF THE DECLARATION OF EMERGENCY - DEEMED TERMINATIONS AND CONSTRUCTIVE DISMISSAL CLAIMS ARE NOW LIVE AGAIN. ANSWERS TO YOUR QUESTIONS......

Both employers and employees in the CKL need to be aware of their exposure to risk arising from the end of the province’s declaration of emergency.

While existing emergency orders will continue under the new, replacement legislation, the end of the emergency declaration will potentially have significant consequences for both employers and employees.

For example:

Risk of Deemed Terminations

In late May, the Ontario government filed Regulation 228/20 under the Employment Standards Act, 2000 (“ESA”), which provides that employees who did not perform their duties because their hours of work had been temporarily reduced or eliminated due to COVID-19 during what was referred to as the “COVID-19 period” were deemed to be on Infectious Disease Emergency Leave (or “IDEL”).

The COVID-19 period was specifically defined under the Regulation as beginning on March 1, 2020 and ending six (6) weeks after the declared state of emergency comes to an end.

Because the declared state of emergency ended on July 24, 2020, the “clock” starts to run.

Once that six-week period ends, the regular ESA rules regarding temporary lay-offs will apply once again and employers who cannot return employees to work within the time frame permitted for such temporary lay-offs may face claims of deemed termination.

 Risk of Constructive Dismissal Claims

Pursuant to Regulation 228/20, the Ontario government also provided employers with limited, statutory protection against claims of constructive dismissal where an employee’s hours were temporarily reduced or eliminated, or where an employee’s wages were temporarily reduced, due to COVID-19 during the COVID-19 period.

However, once the COVID-19 period ends, employers who remain unable to return employees to their regular hours or wages will therefore also need to be mindful of the risk of claims of constructive dismissal.

 Availability of Emergency Leave: Declared Emergencies and Infectious Disease Emergencies

Under the ESA, Emergency Leave – which is an unpaid, job-protected leave of absence available to eligible employees – can currently be accessed in two ways:

  1. in cases of declared emergency (also referred to as Declared Emergency Leave or “DEL”); i.e., when an emergency is declared under the EMCPA and the individual meets other legislated conditions; or

  2. in cases of infectious disease emergencies (also referred to as Infectious Disease Emergency Leave or “IDEL); i.e., for reasons related to COVID-19 specifically, including but not limited to that the individual is under medical investigation, supervision or treatment; the individual is under quarantine or isolation; or the individual is providing care or support to an a listed family member (e.g., school or daycare closures).

With the end of the declared state of emergency in Ontario, employees will generally no longer be able to qualify for DEL. However, IDEL will continue to remain available to those who qualify for reasons related to COVID-1 specifically and employers will need to be mindful of each individual employee’s circumstances when determining whether or not they will continue to remain eligible for IDEL from this date forward.

 Continuation of Emergency Orders

As all existing emergency orders will continue under the new legislation, employers must continue to monitor for any temporary orders that might apply to their workplace.

For example, there are currently a number of orders that deal with labour redeployment or workplace and management rules in certain sectors, as well as with the closure of certain places and spaces or the regulation of how businesses and establishments can safely operate.

Furthermore, although the Act does not permit the Lieutenant Governor to create new temporary orders, it does allow some of them to be amended. Employers must therefore be mindful that any applicable temporary orders are potentially subject to change.

SUMMARY

With the declared state of emergency ended, those on or deemed to be on declared emergency leaves or a deemed infectious diseases leave under the Ontario Employment Standards Act, 2000 (the "ESA") and its regulations will see certain rules and entitlements expired or set to expire. 

Unless the government legislates or regulates otherwise:

• employees are no longer eligible for a declared emergency leave under the ESA; and

• effective on or about September 4, 2020:

  • temporary reductions of employees' hours of work or wages by an employer for reasons related to COVID-19 will no longer be deemed to be on an infectious disease leave in accordance with the O. Reg. 228/20: Infectious Disease Emergency Leave under the ESA, available here;
  • any temporary reductions to, or elimination of an employee's hours of work, or the reduction of any employee's wages by the employer for reasons related to COVID-19 will no longer expressly be deemed not to constitute constructive dismissal under the ESA;
  • temporary layoffs under the ESA will no longer be converted to, or deemed to be, an infectious disease leave in accordance with the O. Reg. 228/20; and
  • any employees who were deemed to be on an infectious disease leave in accordance with O. Reg. 228/20 will cease to be on the infectious disease leave.

The end of the declared state of emergency does not impact employees' entitlement to the infectious disease emergency leave provided for under the ESA, which applies for as long as the event triggering entitlement to the leave lasts.

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HOW DO I CHALLENGE A LAST WILL AND TESTAMENT? WHAT GROUNDS DO I NEED? HOW DOES THIS WORK? ANSWERS.......

So, you’re unhappy with the last will and testament of a family member, or someone from whom you reasonably expected to inherit……

Legally, any person can challenge the validity of a Will, but there are only certain grounds to do so.

If you do not qualify within one or more of these recognized grounds, the Court is unlikely to allow your claim to proceed to what is often very costly and protracted litigation proceedings.

Will disputes are on the rise in Ontario, unfortunately.

They are often characterized by emotional, bitter litigation, usually resulting in the respective lawyers financially gaining more so than the litigants themselves.

What are these grounds to challenge the validity of a Will in Ontario?

Lack of Testamentary Capacity

A testator (meaning the person making the Will) must have the necessary level of mental capacity in order to make a valid Will. Generally speaking, the testator must understand what a Will is and must understand, at least, the general extent of their property. They must also remember and have given consideration to their close relatives to whom they would usually be expected to leave their estate. They must also not be under any delusions that would affect their Will.

It is important to note that the threshold for testamentary capacity is not particularly high. A testator does not have to be fully capable with respect to the management of the property. Rather, so long as the testator has a general understanding of what they own, this will be sufficient.

Likewise, it is important to note that in Ontario, a testator is generally allowed to cut adult children out of a Will (so long as they are not financially dependent on the testator – see below). The test for capacity only requires that the testator remains aware of their children and makes a conscious decision as to whether or not to leave them anything.

Lack of Knowledge and Approval

In addition to having the proper level of capacity, a testator must also actually be aware of what is in their Will. This does not mean that the testator needs to fully understand and appreciate the nuance of each and every clause in the Will (which may be drafted in dense “legalese”); but if the testator signed their Will without being fully aware of the general scheme set out in it, then there is a basis on which to contest the Will.

Will Not Validly Executed

Another ground for challenging a Will is if the proper procedure has not been followed for making a valid Will. To be valid, a Will must be in writing and signed by the testator and two witnesses. The witnesses should not be beneficiaries, or else the gifts made to those beneficiaries acting as witnesses will be void.

If these requirements are not properly met, then the Will can be challenged.

However, it is important to point out that in Ontario, there is also a second, special way to make a valid Will, called a “holograph” Will. This is a Will written entirely in the testator’s handwriting, and signed by the testator.

Undue Influence

Undue influence occurs when someone exerts an inappropriate level of pressure on a testator, to the extent that the testator makes a Will that goes against their true wishes.

As an example, consider a situation in which a testator is very weak and frail and becomes entirely dependent on a friend to care for them. That caregiver may try to exploit the relationship of dependence in order to effectively force the testator to change their Will. If, as a result, the testator makes a Will that goes against their true wishes, then that Will is invalid. However, if the testator legitimately wants to change their Will to reward this caregiver, then this is not undue influence.

It is important to note that it is a very high bar to establish undue influence. In general, there is no prohibition against directly asking or pleading with someone to change their Will. This type of behaviour only crosses the line into undue influence when the testator feels forced to make a Will that they otherwise would not make.

Failure to Provide for Dependents

Finally, if a Will does not make sufficient provision for a dependent of the testator, then this dependent can bring a court application to receive ongoing or lump-sum support from the estate. In this context, a dependent includes someone whom the testator had a legal obligation to support (for example, a spouse or minor child), as well as someone whom the testator was actively supporting prior to their death, even if there was no strict obligation to do so.

This type of court application is not a direct challenge to the validity of the Will itself. Rather, it is an application seeking support to be paid “off the top” of the estate assets. The remaining estate assets would still be distributed as per the Will.

Credit: 

C. Crisman-Cox, Miller Thomson LLP 

 

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CKL BUSINESSES - EVERYTHING YOU NEED TO KNOW ABOUT THE NEW CHANGES TO THE CANADIAN EMERGENCY WAGE SUBSIDY - YOUR CHEAT SHEET AND GUIDE, INCLUDING SAMPLE CALCULATIONS.

The Canadian Emergency Wage Subsidy (CEWS) is being both extended and expanded, likely to co-ordinate with the trailing off of the CERB benefit for many. 

This summary explains the key changes to the CEWS, including providing sample calculations and period-by-period qualification conditions: 

____________________________________________

On July 17, 2020, the Canadian Government released draft legislative proposals (the "Amendments" or "Bill C-20") to amend section 125.7 and other provisions of the Income Tax Act (Canada) (the "ITA").The Amendments extend the Canada Emergency Wage Subsidy (the "CEWS") and significantly expand the scope of the program by making it available to any eligible employer that experiences a revenue decline for qualifying periods starting on July 5, 2020.

The original CEWS was implemented for 12 weeks from March 15, 2020 to June 6, 2020. On May 15, 2020, Finance Minister Bill Morneau announced that the Government of Canada would extend the CEWS by an additional 12 weeks to August 29, 2020. The Canadian Government is proposing a further extension of the CEWS to December 19, 2020.

The information below is based on the draft legislation published by the Department of Finance on July 17, 2020. The amendments passed by Parliament may differ considerably from these proposals. Given this uncertainty, in many cases, it would be prudent not to rely on these changes until the amendments are enacted.

The changes to the CEWS include the following:

  • The CEWS will now cover at least 9 4-week qualifying periods (each, a "Period") starting from March 15, 2020 and ending on November 21, 2020, with the 10th Period expected to be proposed by the government at a later date.

  • The CEWS continues to be available to taxable corporations and trusts, individuals, non-profit organizations, registered charities, and certain partnerships whose members include eligible employers, and certain other prescribed organizations but is not available to public institutions.

  • For the qualifying periods starting on or after July 5, 2020 (i.e. Periods 5 to 9), the CEWS consists of two subsidies: (i) a base subsidy available to all eligible employers that experience a decline in revenue, which will vary depending on the magnitude of the revenue decline; and (ii) a top-up subsidy of up to an additional 25 per cent (of the remuneration paid) for those eligible employers with at least a 50 per cent revenue decline based on a 3-month average.

  • The calculation of the base subsidy is intended to provide for a gradual reduction in the wage subsidy as revenues increase, with the base subsidy rate gradually reduced in later Periods to transition into a phase-out by December, 2020.

  • The top-up subsidy is intended to provide additional financial support to eligible employers that have been most affected by the pandemic.

  • For Periods 5 and 6, a "safe harbour" rule provides that eligible employers may calculate their wage subsidy under the rules currently applicable for Periods 1 to 4 if their revenue decline is at least 30% in June or July 2020 (Period 5) and at least 30% in July or August 2020 (Period 6).

  • The CEWS for Periods 1 to 4 remains the same as before with the Amendments enacting previously announced changes to the wage subsidy.

  • There continues to be no maximum number of employees for which an eligible entity can claim a subsidy and there is no cap on the total amount of the subsidy that an eligible entity may claim.

  • An online application to be filed with the Canada Revenue Agency (the "CRA") for each particular Period has been extended to no later than January 30, 2021.

The Amendments also implement measures previously announced on May 15, 2020. This bulletin summarizes these changes.

Eligible Entities

Entities that were eligible to claim the CEWS during Periods 1 to 4 (e.g., taxable corporations, partnerships consisting primarily of eligible entities, etc.) continue to be eligible for Periods 5 to 9.

Further to the government's announcement on May 15, 2020, the list of eligible entities has been expanded to include the following for the entire duration of the program:

  • Partnerships where more than 50 per cent of the fair market value of the interest in the partnerships is held by eligible entities (previously, eligible partnerships only included those whose members consisted entirely of eligible entities).

  • Private colleges and schools, including for-profit and not-for-profit institutions such as art schools, language schools, driving schools, flight schools and culinary schools.

  • Registered Canadian Amateur Athletic Associations.

  • Registered Journalism Organizations.

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

Qualifying for the Subsidy

For Periods 5 to 9, the "all-or-nothing" revenue drop thresholds of 15% or 30% will be eliminated. As discussed below, all eligible entities that experience a revenue decline will qualify for the CEWS, provided that other qualifying conditions continue to be met. These include: (i) the filing of an application before February 2021 (previously October 2020), (ii) the individual who has "principal responsibility" for the financial activities of the entity attests that the application is "complete and accurate in all material respects", and (iii) the eligible entity must either have had a CRA payroll account on March 15, 2020 or engaged a payroll service provider to administer the eligible entity's payroll using a CRA business number on March 15, 2020.

Calculating the Subsidy

For Periods 5 to 9, the subsidy amount per eligible employee will depend on whether the employee is active or on paid leave.

For active employees, all eligible employers that have a revenue decline will generally receive at least a base subsidy which will be directly proportional to the magnitude of the revenue decline, subject to a maximum base percentage (described below). The base subsidy will gradually be reduced in order to transition to a phase out in December. In addition, a top-up subsidy is available to those eligible employers that suffer at least a 50 per cent revenue decline based on a 3-month average, up to a maximum of 25 per cent.

For employees on paid leave, eligible employers with a revenue decline greater than 0% will generally be able to claim a subsidy during Periods 5 and 6 on the same basis as Periods 1 to 4. However, beginning in Period 7, an eligible employer with a revenue decline will generally be able to claim a subsidy equal to the lesser of (i) 100% of the eligible remuneration paid, and (ii) an amount to be prescribed by regulation, which has not yet been published.

Employer premiums and contributions paid on account of Employment Insurance ("EI"), the Canada Pension Plan ("CPP"), the Quebec Pension Plan ("QPP") and the Quebec Parental Insurance Plan (the "QPIP") for employees on paid leave will continue to be refundable.

In both cases:

  • special rules apply for non-arm's length employees; and

  • an eligible employer may calculate its subsidy under the old rules for Periods 5 and 6 if it experiences a revenue decline of at least 30% in June or July 2020 (Period 5) and at least 30% in July or August 2020 (Period 6). This "safe harbour" is being provided for fairness to those who made business decisions based on current rules.

The CEWS for Periods 5 to 9 (July 5 to November 21)

The amount of the subsidy available for an eligible employer with a revenue decline in Periods 5 to 9, for each week in the relevant Period, is equal to:

1. The aggregate of, for each active eligible employee (subject to the safe harbour rule for Periods 5 and 6 described below):

    (a)  the applicable base subsidy rate plus the applicable top-up subsidy rate for the Period; multiplied by

    (b)  the least of: (i) total amount of eligible remuneration paid to the employee, (ii) $1,129, and (iii) the employee's "baseline remuneration" (in the case of an employee who does not deal at arm's length with the eligible employer); plus

2. The aggregate of, for each eligible employee on leave with pay:

    (a) For Periods 5 and 6: on the same basis as Periods 1 to 4; or

    (b) For Periods 7 to 9: the lesser of: (i) total amount of eligible remuneration paid to the employee, (ii) an amount to be determined by regulation, and (iii) $0 (in the case of a non-arm's length employee who has a "baseline remuneration" of $0); plus

3. The total amount of employer premiums and contributions paid on account of EI, CPP, QPP and QPIP in respect of eligible employees who are on leave with pay during the qualifying period; minus

4. The total amount received under the 10% temporary wage subsidy under subsection 153(1.02) (the "10% Temporary Subsidy") in the Period; minus

5. The total amount of work-sharing benefits received by eligible employees for the qualifying period.

For Periods 5 and 6, a "safe harbour rule" is provided that allows an eligible employer to claim a wage subsidy rate not lower than the rate applicable under the CEWS rules that were in place for Periods 1 to 4. The result is that, for Periods 5 and 6, an eligible employer with a revenue decline of 30 per cent or more in June or July 2020 (Period 5) or in July or August 2020 (Period 6) could receive the greater of: (i) a wage subsidy under the old rules equal to 75 per cent of eligible remuneration paid (up to a weekly maximum of $847 per employee), or (ii) a wage subsidy rate under the new rules (which could, with the top-up subsidy, attain 85 per cent or a weekly maximum of $960 per employee).

The following is a description of the new rules applicable to active employees and paid leave employees.

Active Employees

Base Subsidy

The base subsidy is generally equal to the entity's base subsidy rate multiplied by the amount of eligible remuneration paid to an eligible employee, subject to a weekly maximum that is gradually reduced from $677 in Periods 5 and 6 (July 5 to August 29) to $226 in Period 9 (October 25 to November 21).

The base subsidy rate varies depending on the level of the eligible entity's revenue decline. It is subject to a maximum percentage (achieved when the revenue drop is 50 per cent or more) that is gradually reduced from 60 per cent in Periods 5 and 6 (July 5 to August 29) to 20 per cent in Period 9 (October 25 to November 21).

The following table sets out the base subsidy calculation for Periods 5 to 9:

Period 

Qualifying Period 

Revenue Drop in Current Reference Period 

Base Subsidy Rate 

Maximum Weekly Base Subsidy per Employee[2]

5

July 5 – August 1

0% to 49%

1.2  x revenue drop

$677

50% and over

60%

6

August 2 – August 29

0% to 49%

1.2 x revenue drop

$677

50% and over

60%

7

August 30 – September 26

0% to 49%

1.0 x revenue drop

$565

50% and over

50%

8

September 27 – October 24

0% to 49%

0.8 x revenue drop

$452

50% and over

40%

9

October 25 – November 21

0% to 49%

0.4 x revenue drop

$226

50% and over

20%

Eligibility for the base subsidy would generally be determined by the change in an eligible employer's monthly revenues, year-over-year, for the applicable reference period (e.g. June 2020 vs June 2019). An eligible employer could instead elect to calculate its revenue decline under an alternative approach by comparing its revenue in the applicable reference period to the average revenue earned in January and February 2020 (e.g. June 2020 vs average revenue in January and February 2020).

Employers that have elected to use the alternative approach for the first 4 Periods would be able to either maintain that election for Period 5 and onward or revert to the general approach. Similarly, employers that have used the general approach for the first 4 Periods would be able to either continue with the general approach or elect to use the alternative approach for Period 5 and onward. However, this selection will apply for the remaining periods and for both the calculation of the base subsidy and the top-up subsidy.

For Periods 5 and following, an eligible employer can use the greater of its percentage revenue decline in the current period and that in the previous period to determine its base subsidy rate in the current period. This is similar to the deeming rule in Periods 1 to 4 that allowed an eligible employer that met the revenue test in one period to automatically qualify for the following period.

The conditions described above with respect to the base subsidy reference periods may be summarized as follows:

Period 

Qualifying Period 

Reference Period: General Approach 

Reference Period: Alternative Approach 

5

July 5 – August 1

July 2020 over July 2019

or 

June 2020 over June 2019

July 2020 or June 2020

over

average of January and February 2020

6

August 2 – August 29

August 2020 over August 2019

or 

July 2020 over July 2019

August 2020 or July 2020

over

average of January and February 2020

7

August 30 – September 26

September 2020 over September 2019

or 

August 2020 over August 2019

September 2020 or August 2020

over

average of January and February 2020

8

September 27 – October 24

October 2020 over October 2019

or 

September 2020 over September 2019

October 2020 or September 2020

over

average of January and February 2020

9

October 25 – November 21

November 2020 over November 2019

or 

October 2020 over October 2019

November 2020 or October 2020

over

average of January and February 2020

Top-up Subsidy

A top-up subsidy is available for eligible entities that experience a revenue decline of at least 50% over a specified 3-month period.

The top-up subsidy is generally equal to the entity's top-up subsidy rate multiplied by the amount of eligible remuneration paid to an eligible employee, subject to a weekly maximum of $283.

A top-up subsidy rate of up to 25 per cent would be available to employers based on the revenue drop experienced compared to either the same months in the prior year, or alternatively, by comparing the average monthly revenue in the preceding three months to the average monthly revenue in January 2020 and February 2020.

The top-up rate is generally equal to 1.25 times the amount by which the revenue drop percentage for a specified 3-month period exceeds 50 per cent, up to a maximum top-up rate of 25 per cent (which is available when an eligible entity experiences a 70 per cent revenue decline over the specified 3-month period). The following examples illustrate the calculation of the top-up rate:

3-month average revenue drop 

Top-up Subsidy Rate  

Top-up Calculation: 

1.25 x (3-month revenue drop – 50%) 

70% and greater

25.0%

1.25 x (70%-50%) = 25.0%

65

18.75%

1.25 x (65%-50%) = 18.75%

60

12.5%

1.25 x (60%-50%) = 12.5%

55

6.25%

1.25 x (55%-50%) = 6.25%

50% and lower

0.0%

1.25 x (50%-50%) = 0.0%

Two methods may be used to calculate the change in an eligible employer's revenues for a 3-month period. Under the general approach, the comparison is between the average monthly qualifying revenue for the 3-month period ending before the current reference period and the same 3 months in the previous year. Under the alternative approach, the comparison is between the average monthly qualifying revenue for the 3-month period ending before the current reference period and the average of the months of January and February 2020. The approach chosen for the base subsidy rate must also be used in determining the prior reference period for the top-up subsidy for Period 5 and onwards. In other words, if the average revenue in January and February 2020 is used as the benchmark revenue for the base subsidy, it must also be used for the top-up subsidy.

The reference periods for the 3-month revenue decline may be summarized as follows:

Period 

Qualifying Period 

Reference Period: General Approach 

Reference Period: Alternative Approach 

5

July 5 – August 1

April to June 2020 average

over

April to June 2019 average

April to June 2020 average

over

January and February 2020 average

6

August 2 – August 29

May to July 2020 average

over

May to July 2019 average

May to July 2020 average

over

January and February 2020 average

7

August 30 – September 26

June to August 2020 average

over

June to August 2019 average

June to August 2020 average

over

January and February 2020 average

8

September 27 – October 24

July to September 2020 average

over

July to September 2019 average

July to September 2020 average

over

January and February 2020 average

9

October 25 – November 21

August to October 2020 average

over

August to October 2019 average

August to October 2020 average

over

January and February 2020 average

Employees On Leave With Pay

Under the new rules, eligible employers must calculate their wage subsidy differently for employees who are on paid leave for an entire week during a particular Period.

The subsidy will generally be equal to the lesser of (i) the eligible employee's eligible remuneration for the week, and (ii) an amount to be determined by regulation (to be released at a later date). It is expected that the amount fixed by regulation will align with the benefits provided through the CERB and EI.

As previously mentioned, the subsidy calculation for an employee that is on leave with pay during Periods 5 and 6 would remain the same as for Periods 1 to 4 (if greater than the subsidy obtained under the new rules). In other words, an eligible entity may receive a 75% wage subsidy for paid leave employees (up to a weekly maximum of $847) in Periods 5 and 6, assuming its revenue decline for the base subsidy (i.e., its revenue decline over a calendar month) or top-up subsidy (i.e., its revenue decline over a 3-month period) is greater than 0%. The 0% threshold is noteworthy and stands in contrast to the 30% threshold an employer is required to meet to receive a 75% wage subsidy for active employees.

The employer portion of premiums and contributions in respect of CPP, EI, QPP and QPIP in respect of employees on leave with pay would continue to be refunded to the employer.

The CEWS for Periods 1 to 4 (March 15 to July 4)

The CEWS for Periods 1 to 4 remains the same as before with the Amendments enacting previously announced changes to the wage subsidy. In summary, for Periods 1 to 4, eligible entities who suffer a decline in "qualifying revenue" of at least 15% in Period 1 or 30% in Periods 2 to 4 may claim a wage subsidy as described below. If an eligible entity meets the revenue drop test for Period 1, Period 2, or Period 3, it automatically qualifies for the subsidy for the immediately following Period.

The amount of the subsidy applicable to Periods 1 to 4 is equal to:

1. The aggregate of, for each eligible employee, the greater of the following amounts:

    (a) 75 per cent of eligible remuneration paid to the employee, up to a maximum of $847 per week; and

    (b) the total amount of eligible remuneration paid to the employee, up to a maximum of $847 per week or 75 per cent of the employee's "baseline remuneration", whichever is less; plus

2. The total amount of employer premiums and contributions paid on account of EI, CPP, QPP and QPIP in respect of eligible employees who are on leave with pay during the qualifying period; minus

3. The total amount received under the 10% Temporary Subsidy for the qualifying period; minus

4. The total amount of work-sharing benefits received by eligible employees for the qualifying period.

The revenue reduction is determined by reference to either: (i) the revenue earned in the same month in 2019, or (ii) the average revenue earned in January and February 2020. The same approach must be used for the first four Periods. The conditions described above may be summarized as follows:

Period 

Qualifying Period 

Required Reduction 

Reference Period for Eligibility 

1

March 15 - April 11

15%

March 2020 over: (i) March 2019 or (ii) average of January and February 2020

2

April 12 - May 9

30%

Eligible for Period 1

OR

April 2020 over: (i) April 2019 or (ii) average of January and February 2020

3

May 10 - June 6

30%

Eligible for Period 2

OR

May 2020 over: (i) May 2019 or (ii) average of January and February 2020

4

June 7 – July 5

30%

Eligible for Period 3

OR

June 2020 over: (i) June 2019 or (ii) average of January and February 2020

Additional Rules for Calculating Qualifying Revenue

Amalgamated corporations may not be in a position to qualify for the CEWS since they may not have the required revenue decline or the revenue drop may not provide a full picture of their pre-crisis revenues. Further to the government's announcement on May 15, 2020, the Amendments will allow corporations formed by amalgamation to calculate the revenue for the applicable reference periods using the combined revenue of the predecessor corporations unless it is reasonable to consider that one of the main purposes for the amalgamation (or the winding up) was to qualify for the CEWS or to increase the amount of the CEWS otherwise available.

An eligible entity that acquires all or substantially all of the assets of a business carried on in Canada can elect (jointly with the seller) to include the qualifying revenue that is reasonably attributable to the acquired assets in the qualifying revenue of the eligible entity (and not the seller) for the purposes of determining the eligible entity's qualifying revenue under the CEWS.

Amendment to Eligible Employee Definition

A wage subsidy may only be claimed in respect of eligible remuneration paid to eligible employees.

For Periods 1 to 4, an eligible employee was defined as an individual who is employed in Canada and who has not been without remuneration for 14 or more consecutive days in the relevant qualifying period.

Effective July 5, 2020 (i.e., for Periods 5 and following), the eligibility criteria would no longer exclude employees that are without remuneration in respect of 14 or more consecutive days in an eligibility period, meaning that employees who are paid, for example, 1 week out of 4 will qualify as eligible employees. This amendment is being introduced to help transition workers from the CERB to the CEWS.

Amendment to Baseline Remuneration Definition

Baseline remuneration refers to the average weekly eligible remuneration paid to eligible employees from January 1, 2020 to March 15, 2020. To accommodate seasonal employees, in particular, an eligible employer may elect one of the following alternative periods on an employee-by-employee basis:

  • Periods 1 to 3: March 1, 2019 to May 31, 2019.

  • Period 4: March 1, 2019 to May 31, 2019 orMarch 1, 2019 to June 30, 2019.

  • Period 5 and following: July 1, 2019 to December 31, 2019.

In all cases, the calculation of average weekly remuneration would exclude any period of 7 or more consecutive days without remuneration.

Under the new rules for Periods 5 to 9, the concept of baseline remuneration is only relevant to non-arm's length employees (discussed below). For arm's-length employees, the subsidy would be based solely on actual remuneration paid for the qualifying period.

Non-Arm's Length Employees

A wage subsidy may only be claimed in respect of non-arm's length employees (such as owner-managers) provided that they have a baseline remuneration greater than $0 (see above for the baseline remuneration periods that may be used for calculation purposes).

The amount of the subsidy for active non-arm's length employees for Periods 5 to 9 will generally be equal to the sum of the base subsidy rate and the top-up rate multiplied by the lesser of (i) 100% of the eligible remuneration paid, (ii) $1,129, and (iii) the non-arm's length employee's baseline remuneration.

Amendment to Certain Anti-avoidance Rules

Certain anti-avoidance rules were enacted under the original CEWS legislation to deny a wage subsidy if an action was taken to effectively reduce the employer's qualifying revenue for the purpose of qualifying for the wage subsidy. These rules will be amended to apply in situations where not only actions were taken to qualify for the wage subsidy, but also to increase the amount of the wage subsidy.

This amendment adapts the anti-avoidance rules to the new wage subsidy rules, which provide a subsidy on a sliding scale depending on the amount of an eligible entity's revenue decline.

Objection and Appeal

After reviewing a CEWS application, the CRA will now issue a "notice of determination" accepting, varying or denying the subsidy claimed. If an eligible employer disagrees with the notice of determination, it may file a notice of objection under the usual dispute resolution process set out in the ITA.

Commentary

The estimated total fiscal cost for the expanded CEWS program is $83.6 billion. This amount will be offset by income taxes collected on salary and wages paid to employees under the program and an anticipated reduction of benefits paid under the CERB and EI programs. Although the CEWS will be considered taxable government assistance for taxable employers, the income inclusion should generally be offset by a deduction for employee remuneration.

The expansion of the CEWS to a greater number of eligible employers starting in Period 5 has significantly increased the complexity of the program. Furthermore, the fact that the new subsidy will generally be directly proportional to an eligible employer's revenue decline percentage means that the entity will have to carefully calculate its qualifying revenue to avoid excessive claims and keep supporting records documenting all calculations. Under the previous rules, certain eligible employers may have been comfortable claiming the CEWS based on estimated revenue because of the all-or-nothing 15% or 30% threshold. This approach is not possible or advisable here.

Overestimating a revenue drop may result in a tax assessment for the amount of the excess subsidy claimed and the related interest, including possible penalties. Eligible employers should also bear in mind that certain anti-avoidance rules will be expanded to apply to actions that may "increase" the amount of the subsidy (rather than just "qualify" under the prior version), which further underscores the importance of precisely calculating their revenue drop.

While we understand the Canadian government's concern for the potential abuse of this generous program, there will be many instances of confusion and/or honest mistakes. There will be genuine disagreements regarding, for example, the computation of the qualifying revenue drop, as well as eligible remuneration and baseline remuneration, the application of the anti-abuse provisions, among others.

While the changes to the CEWS are intended to broaden the availability of the program to a greater number of employers as they begin to recover from the pandemic, employers will need to consider the impact of the new rules on their staffing decisions. For example, the subsidy available for employees on paid leave for Periods 5 to 6 will remain the same as the prior Periods, but will be adjusted starting in Period 7 to take into account changes to the CERB and EI. What steps an employer will want to take as a result of these changes will vary from organization to organization and will require a detailed assessment of each organization's current financial position and its short and medium term business prospects.

As this is a CRA-administered program, we suggest that all best practices normally followed by taxpayers to comply with our self-assessment system be equally applied here, including seeking help interpreting the most up-to-date legislation and CRA guidance, completing the proper due diligence, and keeping contemporaneous records and documentation. We are committed to helping employers navigate the CEWS and available to provide further guidance and explanations as requested.

Credit

Kevin H. Yip and Taj Kudhail, Fasken, published July 23, 2020

 

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FEDERALLY REGULATED BUSINESSES IN THE CKL (BANKS, TRANSPORTATION, COMMUNICATIONS, etc.) - BETTER GET READY FOR THE NEW MAJOR CHANGES TO YOUR ANTI-HARASSMENT/VIOLENCE DUTIES AND POLICIES AS OF DEC. 31. WHAT YOU NEED TO KNOW AND DO.

At the end of this year (Jan. 1, 2021), employers that are federally regulated (banks, transportation, communication, etc.) must comply with the new “Work Place Harassment and Violence Prevention Regulations (the “Regulations”).

They extensively overhaul employer’s harassment-related duties and obligations and impose many new policy-related requirements.

For example, the Regulations require employers to solicit feedback and work with a policy committee, workplace committee, or occupational health and safety representative (each an “Applicable Partner”), to take proactive steps to prevent the occurrence of workplace harassment and violence. Specifically, an employer and Applicable Partner must jointly:

  • conduct workplace assessments to identify risks related to workplace harassment and violence, and to implement preventative measures aimed at alleviating those risks;

  • develop and implement a workplace harassment and violence prevention policy that outlines how the employer will address harassment and violence in the workplace (all compulsory requirements for such policy are set out in section 10 of the Regulations);

  • develop emergency procedures that are to be implemented when the occurrence of harassment or violence pose an immediate danger or threat to the health and safety of an employee; and

  • develop or identify workplace violence and harassment training to be delivered to all employees within 1 year of the Regulations coming into force (and within 3 months of commencing employment for those employees who commence employment after the Regulations come into force).

The Regulations also require employers to:

  • provide employees with information on support services related to mental and psychological health;

  • designate a person or work unit that is responsible for receiving notice of an occurrence of workplace harassment or violence;

  • retain certain records relating to workplace harassment and violence (a list of records that must be retained is set out in section 35 of the Regulations); and

  • deliver an annual report to the Minister on or before March 1st of each year, reporting on the frequency of workplace harassment and violence occurrences.

New Complaint Resolution Process

The Regulations also include a new framework that employers must follow when responding to workplace harassment and violence complaints. Notably, the framework requires an employer, or a person designated by the employer to:

  • contact a complainant within 7 days of receiving a complaint and notify them: (i) that the complaint was received; (ii) that the workplace harassment and prevention policy has been engaged; (iii) of each of the steps in the resolution process that will be followed; and (iv) that the complainant is permitted to have representation during the resolution process;

  • contact the person who is alleged to have been responsible for the occurrence of workplace harassment or violence that was identified in the complaint, and notify the person: (i) they have been named or identified as the responding party to a complaint; (ii) that the workplace harassment and prevention policy has been engaged; (iii) of each step of the resolution process that will be followed; and (iv) that the responding party is permitted to have representation during the resolution process;

  • within 45 days of receiving notification of a complaint, make “every reasonable effort” to resolve the complaint, which may include a negotiated resolution or participation in conciliation (if agreed to by all parties to the complaint);

  • select a qualified investigator to investigate the complaint if requested by the complainant to do so. In order to be considered a qualified investigator, the individual must have specific qualifications and training, as well as knowledge of the Canada Labour Code, the Canadian Human Rights Act and any other legislation that is relevant to harassment and violence in the workplace (investigator qualifications are set out in section 28 of the Regulations);

  • following the issuance of an investigator’s report, the employer and the Applicable Partner must jointly determine which of the recommendations set out in the report will be implemented to eliminate or minimize the risk of a similar occurrence; and

  • conclude the resolution process within 1 year after the day on which notice of the occurrence was received.

What Should Federally Regulated Employers Now Do?

The Regulations are scheduled to take effect on January 1, 2021.

Because of the extensive new duties and policy requirements imposed, employers should start working with the Applicable Partner to review and amend existing policies and training material to ensure compliance with the Regulations.

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NEW LANDLORD/TENANT LAW NOW IN EFFECT IN THE CKL - MORE PROTECTION TO TENANTS. WHAT TENANTS/LANDLORDS NEED TO KNOW TODAY.

The Ontario government is increasing fines for unlawful evictions and reinforcing the necessity for landlords to explore repayment agreements before considering evictions.

These measures are included in the Protecting Tenants and Strengthening Community Housing Act, which was passed today. 

The legislation, which updates the Residential Tenancies Act, 2006 and Housing Services Act, 2011, will make it easier to resolve disputes while protecting tenants from unlawful evictions by:

  • Requiring tenant compensation of one month's rent for "no fault" evictions;

  • Allowing the Landlord and Tenant Board to order up to 12 months' rent in compensation for eviction notices issued in bad faith or where the landlord does not allow the tenant to move back in after renovations or repairs;

  • Doubling the maximum fine amounts for offences under the Act to $50,000 for an individual and $250,000 for a corporation.

The changes will also modernize and streamline the dispute resolution processes at the Landlord and Tenant Board and encourage the use of alternatives to formal hearings to resolve certain issues and encourage negotiated settlements. The Landlord and Tenant Board must now consider whether a landlord tried to negotiate a repayment agreement with a tenant before it can issue an eviction order for non-payment of rent related to COVID-19. Certain disputes, such as those related to unpaid utility bills, will shift from Small Claims Court to the Board.

In addition, as part of the multi-year strategy to stabilize and grow Ontario's community housing sector, the government has made changes to the Housing Services Act, 2011.

These amendments will help maintain the existing community housing supply by giving housing providers with expiring operating agreements and mortgages ways to remain in the community housing system by sigining a new service agreement with service managers as well as encourage existing and new housing providers to offer community housing.

Changes would also require service managers to have an access system for housing assistance beyond just rent-geared-to-income housing, and enable an outcomes-based approach to accountability by modernizing outdated service level requirements.

Ontario will consult with service managers and stakeholders on regulations to protect, repair and grow community housing supply, new access system rules, and ways to encourage new, innovative approaches.

These changes build on the commitments in the government's Community Housing Renewal Strategy and the steps already taken to make life easier for tenants and housing providers - including simplifying rent-geared-to-income calculations, and removing rules that penalize people for working more hours or going back to school.

Quick Facts

Background Information

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CKL EMPLOYERS - YOUR FULL PLAYBOOK FOR RE-OPENING AND OPERATING DURING THE PANDEMIC - SAFETY DUTIES; MANAGING RISKS AND EMPLOYEES; DEALING WITH CUSTOMERS PROPERLY - EVERYTHING YOU NEED TO KNOW TO RUN A SAFE AND RISK-MINIMIZED WORKPLACE/BUSINESS.

What every employer in the CKL needs to know about not returning to work, but carrying on business during COVID, including managing employees, safety obligations and what to do in COVID-related circumstances:

Employers have a duty to provide a safe and healthy workplace

Employers have a duty to protect the health and safety of their workers. Employers are required to implement preventative measures to ensure workers are not exposed to conditions which could be harmful to their health and safety while working. Failure to ensure a safe workplace can lead to liability under occupational health and safety (OH&S) legislation, including fines and penalties, and, in serious cases, criminal prosecutions and/or civil liability for employers not covered under the applicable workers’ compensation regime.

To meet their obligations to provide a safe workplace, it is imperative that employers update and implement (and in some cases post in the workplace) new health and safety policies and practices in their workplaces to address the risks associated with the COVID-19 pandemic. These policies and practices will, of course, vary from workplace to workplace, and province to province, but this guide highlights many of the common issues employers will need to address.

Most provinces have specific requirements regarding worker health and safety representatives or a joint health and safety committee comprised of management and non-management employees. There are requirements under OH&S legislation regarding the composition of safety committees and requirements regarding the frequency of safety meetings and workplace inspections, as well as record-keeping related thereto. Employers should ensure that their return to the workplace safety plans are submitted through the appropriate workplace safety processes.

Deciding whether and when to reopen a workplace

First, an employer must determine whether they can legally reopen their physical workplaces, based on current government orders and restrictions, and each province’s plan for reopening the economy. Each province is loosening restrictions, and providing varying levels of guidance, which will continue to evolve. A summary of the steps taken towards reopening by each of the provinces in Canada can be found here.

Any breach of government orders could expose an employer to fines, and potentially increased OH&S compliance risk.

Once employers have determined that they can legally reopen their physical workplaces, employers will need to consider whether their workplaces can be opened safely. This exercise consists of (i) assessing the workplace and determining whether the employer is able to satisfy its duty to provide a safe and healthy workplace by implementing controls to address the hazard of COVID-19, and (ii) implementing those controls.

Workplace controls to address the hazard of COVID-19 should align with the guidelines, mandates and orders in the employer’s jurisdiction. This guide outlines the current guidance (as of the date noted at the top of this Guide) available from authorities across Canada regarding the practical steps employers should implement to reduce the risk of COVID-19 transmission in the workplace. We expect all levels of governments and public health authorities will provide additional guidance over time as to additional measures employers should take to protect workers.

Assessing the COVID-19 hazard in the workplace

The first step for ensuring a safe workplace is to conduct a hazard assessment for COVID-19 transmission in the workplace, as required to comply with provincial OH&S legislation. Employers should keep in mind that they may have a duty to consult joint health and safety committees, health and safety representatives and/or unions, and seek input from employees (including joint committees and worker representatives) on where potential transmission may occur and how they think COVID-19 transmission can be controlled.

When identifying hazards and developing measures to control exposure, WorkSafeBC suggests employers conduct a walk-through of the workplace to identify specific conditions or tasks that may increase the risk of exposure of employees to COVID-19. Other workers compensation boards have issued similar guidance.

All decisions must be taken on a reasoned basis, taking into consideration governmental and public health guidance and the employer’s duty of care to its employees, and in a manner consistent with the employer’s workplace health and safety policies, including those related to safety committees discussed above. Ensuring that all decisions related to workplace health and safety are properly documented and reasonable is also important. Employers may also have a duty to post their COVID-19 return to work safety plan and/or policies on their website on in the workplace, as is the case in British Columbia and most workplaces in Ontario.

Specific considerations for ensuring a safe and healthy workplace

The safest way to keep employees from contracting or spreading COVID-19 is to eliminate or reduce physical contact between employees. This can obviously be accomplished by allowing employees to work from home or continue working from home, if possible. While we strongly suspect that effective work from home policies and procedures will be an invaluable tool for most workplaces going forward, work from home arrangements are not possible for everyone, and may not be a long-term solution that can be supported by most employers (or employees for that matter). Employers’ return to work plans should consider a staggered physical return to work, ongoing assessment of the employer’s hierarchy of controls, and evolving re-assessment of workplace hazards and policies.

As employers progress from allowing an increasing proportion of employees who are working from home to physically return to the workplace, employers should consider the following hierarchy of controls to address the identified hazards related to COVID-19 in the workplace:

  • Engineering controls (i.e., physical distancing and physical barriers)

  • Administrative controls (i.e., adjusting policies and procedures to reduce risk)

  • The use of personal protective equipment (“PPE”)

We consider these types of controls in detail below:

Physical Distancing Measures for Workplaces

Employers should implement engineering controls (i.e. measures for addressing a workplace hazard by either removing the hazard or introducing a barrier between the hazard and the worker) and administrative controls (changes in workplace policies or procedures to reduce or minimize exposure to a hazard) to ensure physical distancing requirements are maintained. Employers should keep in mind that physical distancing considerations do not only apply to interactions between employees; such considerations may also apply to interactions with customers, suppliers, patients, visitors and members of the public.

Employers could consider the following measures for reducing COVID-19-related risks in the workplace:

Category

Key Considerations

Limiting the number of employees and others in the workplace

  • Encouraging employees to continue working from home if they are able.
  • Allowing only a minimum amount of staff to return to the physical workplace.
  • Implementing staggered or rotating returns to the workplace to reduce the number of employees present at the workplace at any one time. For example, specifying which day(s) an employee or group of employees may come to the workplace.
  • Controlling the number of customers and other third parties entering and exiting the workplace.

Encouraging physical distancing at work

  • Limiting entrance and exit points. Consider whether emergency evacuation plans need to be updated to address changes to access points.
  • Rearranging workspaces and floor plans, including increasing separation between desks, workstations, and furniture or fixtures in common spaces such as lunchrooms, meeting rooms, waiting rooms, and washrooms. Examples include taping off every second urinal in a men’s washroom and removing chairs in common spaces to ensure adequate physical distance.
  • Controlling access to elevators and areas within the workplace, including updating key cards to limit access and limiting the number of people who may ride in an elevator at a time.
  • Adjusting scheduling, such as start/end times and breaks to reduce the number of people using common spaces (such as break rooms, kitchens, and bathrooms) and elevators at the same time.
  • Implementing signage to ensure distance is maintained, for example using taped arrows to indicate “one way” traffic in hallways, taping off waiting areas to prevent bottlenecks in small spaces such as washrooms, taping off areas around workstations, appliances, machines, photocopiers, etc. to indicate appropriate two-metre spacing.
  • Discouraging or cancelling all non-essential activities, social events and in-person meetings.
  • Staggering appointments and meetings with customers or other meeting attendees.

Limiting physical contact and minimizing interpersonal interactions

  • Installing physical barriers between workers or between workers and third parties. A common example of a physical barrier is the plexiglass partitions currently found in many grocery stores and pharmacies.
  • Removing all communal items that cannot be easily cleaned, such as newspapers, magazines, and candy bowls.
  • Reducing or eliminating the sharing of tools and equipment (such as keyboards, pens and other tools) between employees, or if sharing is required, providing solution for employees to disinfect tools and equipment between uses.
  • Avoiding the provision or sharing of food, beverages, and food related items in the workplace including coffee makers, cutlery, mugs, etc.
  • Using technology to minimize interactions, such as using technology to share documents and going “cashless”.

Worker and workplace hygiene

  • Promoting regular and thorough hand-washing and good hygiene by employees and other individuals present in the workplace. For example, by ensuring employees have access to soap and water or alcohol-based sanitizer, putting hand sanitizer dispensers in prominent places around the workplace, ensuring these dispensers are regularly refilled, and placing informational posters throughout the workplace.
  • Developing procedures for regularly scheduled enhanced cleaning and disinfecting of the workplace, particularly high-contact items such as doors, handles, faucet handles, keyboards, and shared equipment. Various provincial governments have provided guidance on cleaning practices and workplace hygiene, that can be found in the below list of Return to work Resources for Employers.
  • Evaluation of workplace environments as to whether ventilation and filtration provided by heating, ventilating, and air-conditioning systems can reduce the risk of transmission through the air.

Preventing potentially sick employees from being at work

  • Preventing symptomatic employees from attending the workplace by developing written policies and procedures employees must follow if they are sick or suspect they have come into contact with someone diagnosed with COVID-19.
  • Requiring employees to complete a daily COVID-19 pre-screening, such as a COVID-19 self-assessment questionnaire prior to attending the workplace. Each province has published its own self-assessment tool that could be adapted by employers for this purpose.
  • Requiring employees to take a temperature test before entering the workplace, if appropriate. Note that this type of precaution is not without risk and care should be taken to ensure that employees’ rights are respected (as discussed in our Quick Reference Guide). It is also important to keep in mind the limitations of temperature checks; employees can be contagious prior to having a fever, so this measure will only be partially effective and should only be used as part of a more comprehensive screening program.

Implementing appropriate policies

  • Developing policies and practices to:
    • Limit nonessential travel to other locations or worksites.
    • Ensure that all employees are trained on all COVID-19 related policies and procedures, including up-to-date education and training on COVID-19 risk factors and protective behaviors (for example, transmission points, equipment cleaning processes, cough etiquette and handwashing).
    • Retain the names and contact details of stakeholders attending the worksite to assist public health authorities trace people who may have been exposed to COVID-19 at the worksite. Such action should only be taken after carefully considering and adequately addressing the privacy related concerns this may raise.
    • Ensure that policies are kept up to date and being followed, for example through regular audits to ensure employees are maintaining appropriate physical distance.
    • Respond appropriately to employee concerns or refusals to work due to workplace health and safety concerns, including developing policies in advance in consultation with employers’ joint workplace health and safety committees or other employee representatives and appropriately implementing additional policies and controls to address hazards identified by employees on an ongoing basis.
    • Check with vendors, suppliers and landlords on measures they have implemented to manage COVID-19 related risks.

Evaluate policies and procedures regularly

  • Review policies, practices and procedures regularly and assess whether they are achieving the desired outcome.
  • Update policies and procedures regularly as the situation and available guidance changes.

Personal protective equipment (PPE) for employees – face masks, gloves and eye protection

Where hazards related to COVID-19 cannot be eliminated through administrative and engineering controls, employers may consider the use of PPE in the workplace. PPE, which controls the hazard at the employee level, includes measures such as face masks, gloves and eye protection. Provincial governments have advised that PPE should only be used after all other controls have been considered and all feasible measures have been implemented (for example, refer to the following guidance from the Government of Alberta and the Government of Ontario).

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

If PPE is necessary to control risks related to COVID-19, employers should consider what, if any, PPE the employer can provide. Regardless of the measures that are taken, it is important to ensure that safety measures are informed by governmental and public health guidance.

Requiring the use of face masks, in particular, has been a common consideration for employers contemplating a return to the physical workplace. The current advice from Canada’s Chief Medical Officer is that individuals should wear a non-medical face mask when they are unable to maintain proper physical distance from others. A non-medical mask can reduce the chance of an individual’s respiratory droplets coming into contact with others or landing on surfaces. The use of a non-medical mask is primarily to protect an employee’s co-workers, as opposed to protecting the individual wearing the mask.

The Public Health Agency of Canada recommends wearing a non-medical mask or face covering in public places, especially crowded ones, when physical distancing isn’t possible. As of the date of this guide, the province of Quebec has introduced provincial legislation requiring masks mandatory in public. Several municipal jurisdictions in Canada have also passed by-laws making face masks mandatory in public. For example, as of the date noted at the top of this Guide, in Toronto, most employees working in retail stores, grocery stores, malls and shopping plazas, restaurants and bars, recreation facilities, personal services settings, common areas in hotels, and community centres, among others, are required to wear face masks or face coverings when in public enclosed spaces (see here for information on the Toronto Mandatory Mask or Face Covering Bylaw).

Health Care Professionals have made strong recommendations for mandatory face mask coverings, and because municipalities have for the most part lead the changes by introducing mandatory face mask by-laws, changes to the applicable laws on mandatory face mask coverings are rapidly evolving and may outpace the regular updates to this publication. Accordingly, employers should contact a member of the Osler Employment & Labour group for up to date advice on applicable municipal and provincial laws regarding mandatory face mask laws in jurisdictions in which they operate.

If employees are required or encouraged to wear masks in the workplace, the employer should supply those masks. Any provision of masks to employees should be accompanied by a policy on non-medical face masks and training for employees on how to properly use a non-medical mask, as well as their limitations (as described above). Further, in workplaces where employees are required to wear masks pursuant to the Toronto Mandatory Mask or Face Covering Bylaw, the employer must:

  • Create a mask policy.

  • Communicate the mask policy to staff and customers.

  • Train staff on the policy and who is exempt.

  • Require that all staff, customers or visitors wear a mask indoors, with some exceptions, including children under two years of age, people with certain health conditions, and employees in designated areas or protected by a physical barrier.

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

Note also that face masks and coverings are distinct from plastic face shields, which are generally not accepted as substitutes for non-medical masks.

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

Ontario’s Workers Health & Safety Centre (WHSC) notes that gloves are not always necessary but may be recommended for employees who will be in contact with someone who is ill or a surface that is contaminated. Employees should understand that gloves are not a substitute for hand hygiene (i.e. proper and frequent hand washing or using hand sanitizer) or for appropriate social distancing measures.

How to handle symptomatic employees

Employers should develop an infection prevention and control plan that includes procedures for responding when an employee, customer, or other individual present in the workplace becomes ill with symptoms of COVID-19. Such a plan could include (i) procedures for isolating and transporting the individual home if they begin showing symptoms at the workplace and (ii) steps to take if an employee or other individual tests positive for COVID-19 shortly after attending the workplace, including notifying other employees of potential exposure. Employers should also be aware that they may have an obligation to report COVID-19 transmission in the workplace to their provincial health authorities.

Employees who appear to have symptoms (for example, fever, cough, or shortness of breath) upon arrival at work or who become sick during the day should immediately be separated from other employees, customers, and visitors and sent home. If an individual does not have their own transportation, the employer should support them in arranging transportation home. Individuals should avoid taking public transit if at all possible. In fact, symptomatic or sick individuals are prohibited from taking public transit in certain provinces, including Alberta. If an employee will use a rideshare service to get home, it may be necessary to provide the employee with a mask and direct the employee to ensure that the vehicle’s windows are rolled down to improve ventilation.

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

Accommodating employee requests not to return

There are a variety of unique challenges employees are facing and there are a number of reasons a worker may be unwilling or unable to return to work. Employers should consider and develop policies for the following situations:

  • Higher risk employees: Certain individuals may be at greater risk of having more severe complications if they become infected with COVID-19. According to the Government of Canada, individuals at higher risk include older adults, people with weakened immune systems, and people with medical conditions including heart disease, hypertension, lung disease, diabetes and cancer. Recommendations for higher risk employees may include implementing:

    • A self-disclosure policy whereby employees can disclose that they are at a higher risk (without disclosing any personal details or sensitive medical information).

    • Mitigation measures if the employer is or becomes aware that an employee is at higher risk (for example, working from home).

  • Employees with childcare issues or caring for a sick relative: In some provinces, employees are eligible for job protected leaves if they are required to provide care to a person for a reason related to COVID-19 (i.e. school closure or sickness). If an employee requests to take a certain unpaid statutory leave of absence and meets the qualifying requirements of that statutory leave, the employer must grant it and may be precluded from terminating the employee’s employment for the duration in the leave. For employees making such requests, employers may consider:

    • Permitting the employee to work from home, if possible.

    • Whether the employee is eligible for paid leave in accordance with the employer’s existing contracts, policies and practices.

For more details regarding statutory leaves and options for employers, please see our Quick Reference Guide for Employers.

Employees concerned about workplace safety: Subject to applicable OH&S legislation, workers have a statutory right to refuse work if the worker believes on reasonable grounds that the work constitutes a danger to the worker’s health and safety. OH&S legislation varies by jurisdiction, but requirements related to work refusals generally include the following steps:

  • the employee must report the hazard to the employer;

  • the employer must take any necessary corrective action in a timely manner to address the reported hazard;

  • if an employee believes their workplace is still unsafe, the employee may make a complaint to the OH&S authorities in their jurisdiction; and

  • OH&S officers have authority to enforce OH&S legislation in a number of ways, including conducting inspections, issuing orders, writing violation tickets and issuing administrative penalties.

    Employers should consult legal counsel where an employee has exercised their right to refuse to work to inform themselves of the applicable procedure in their jurisdiction.

Other employees may have non-specific health concerns regarding the general risks associated with COVID-19, including with respect to taking public transit and other non-workplace matters. In these cases, no specific statutory duties may be triggered, but employers should strive to treat employees consistently in responding to these types of concerns.

Employers should ensure that their accommodation policies and practices address these issues fairly and in accordance with their legal obligations pursuant to applicable human rights legislation. As we noted in our Quick Reference Guide for Employers, human rights commissions across Canada have published policy statements and general principles regarding COVID-19 and an employer’s human rights obligations. Human rights commissions within Canada have provided very clear guidance that employers should be sensitive to a variety of factors affecting an employee’s ability to attend the workplace such as caregiving responsibilities or pre-existing health problems (for example, if the employee has a compromised immune system). See, for example, Alberta’s guidance here.

Employers should consider developing a decision matrix regarding employee objections to returning to the workplace so that legal risks are identified and the employer complies with its legal objections in responding to all such objections.

Looking ahead: Adjustments to policies and contracts as a result of COVID-19

In conjunction with addressing workplace safety issues as described above, it will be important to consider what workplace policies and practices need to be updated, supplemented or replaced as a result of the COVID-19 pandemic. In addition to adapting workplace health and safety polices to the “new normal” as described above, employers should consider if any of their policies need to be updated. For example:

  • Travel: Earlier in the year, we saw many employers scrambling to amend their travel policies to provide for travel restrictions and quarantine periods. These types of policies will continue to be important in the coming months, especially as countries start reopening their borders and business and personal travel resume.

  • Time off: Most employers' sick policies do not sufficiently address considerations related to COVID-19. For example, time off during quarantine periods should be expressly addressed. Time off policies should be clear on whether leaves of absence will be paid or unpaid. Various provinces have introduced amendments to job protected leaves as a result of COVID-19 and employers’ policies will have to be adjusted to comply with these amendments.

  • Work from home: As described above, working from home is likely to be a tool that employers use to maintain workplace safety going forward. Work from home policies should address mandatory and optional work from home arrangements (as applicable) and considerations related to security, privacy, and acceptable use of company equipment. Whether any current work from home arrangements will be time-limited to the current situation involving COVID-19 should be expressly set out in the employer’s policies.

Employment contracts should also be reviewed to ensure they appropriately address various issues which the COVID-19 pandemic has brought to the forefront, such as temporary layoffs. Employers may also want to consider whether their employment contracts have effective termination clauses, especially in light of recent important court decisions (such as those discussed here), as well as provisions regarding changes to duties, compensation, and work location.

Credit:

Osler, Hoskin & Harcourt LLP, Brian Thiessen, Kelly O’Ferrall, Catherin Hammill and Lindsay Hofer (via Lexology.com on July 23, 2020)

 

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NEW FUNDING TO COMBAT HATE CRIME IN THE CKL NOW AVAILABLE - APPLY TODAY TO START A COMMUNITY PROGRAM.

The Ontario government is investing $1.7 million over the next two years in community-based programs to combat hate-motivated crimes.

The funding will flow through the Safer and Vital Communities (SVC) Grant  to not-for-profit organizations and First Nation Band Councils.

Applicants are required to partner with their local police service and are encouraged to partner with at least one other organization from a different sector to ensure a broad range of community engagement.

The Safer and Vital Communities Grant is open to community-based, not-for-profit organizations as well as Indigenous community-based, not-for-profit organizations and First Nation Band Councils to implement local projects that tackle hate-motivated crime and address the increase of police-reported hate crime in Ontario.

The theme of this year's grant program is Preventing Hate-Motivated Crime through Community Collaboration.

To be eligible, applicants must address hate-motivated crime in their community through programs and strategies.

Applications could include recreational programs that positively affect the development of children and youth, raising awareness of hate-motivated crimes, as well as the improvement of security infrastructure.

Successful applicants and projects will be announced in the winter of 2021.

Applications for the Safer and Vital Communities Grant are open from July 22 to September 16.

Quick Facts

  • According to Statistics Canada, in 2017, police-reported criminal incidents in Canada that were motivated by hate jumped by 47 per cent over the previous year. The largest provincial increase occurred in Ontario at 67 per cent.

  • The $1.7-million investment will be made over two years from 2020 to 2022.

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DECLARATION OF EMERGENCY ENDS TOMORROW!!!! BUT EMERGENCY ORDERS REMAIN IN EFFECT. WHAT YOU NEED TO KNOW FOR TOMORROW, JULY 24, 2020.

Per the Ontario government's new Bill 195, enacting the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, which will come into force on July 24, 2020, the  the declared state of emergency in Ontario ends. 

However, this new legislation: 

●  continues emergency orders in effect under the Emergency Management and Civil Protection Act (the "EMCPA") for an initial 30 days;

●   allows the Lieutenant Governor in Council (or a Minister to whom the power is delegated) to further extend these orders for up to 30 days at a time, as required;

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

 labour redeployment or workplace and management rules;

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

○ compliance with public health advice; or

○ rules related to gatherings and organized public events;

●  does not allow new emergency orders to be created;

●  allows emergency orders to be rescinded when it is safe to do so; and

●  limits the ability to extend and amend orders to one year, unless extended by the legislature. 

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NEW BAIT MANAGEMENT SYSTEM ANNOUNCED - TO BETTER PROTECT THE RIVERS/LAKES IN THE CKL. WHAT YOU NEED TO KNOW TODAY.

The Ontario government has now released its final bait management strategy to protect the province's lakes and rivers from the threat of invasive species and fish diseases. As part of this new strategy, the government will be establishing four bait management zones to limit the movement of live bait across the province.

Live bait that is harvested in one area of the province is often shipped, sold, and later used in another region. If unused bait is not disposed of properly, invasive and other illegal bait species that may be mistakenly mixed in with the bait, or fish infected with disease, have the potential to establish new populations or infect other fish in the new waterbody.

To prevent the spread of invasive species and fish diseases through the movement of live bait, four bait management zones will be established across the province. This will limit the movement of most bait to the same bait management zone where it was harvested. Individual anglers who wish to use live bait outside of their own bait management zone will be required to purchase bait from a licensed commercial bait operator in the zone where they will be fishing.

The final Sustainable Bait Management Strategy, posted on the Environmental Registry of Ontario, is a result of extensive engagement with bait operators, stakeholder groups, the public, and Indigenous communities. They provided input on key elements related to the use and movement of bait, the type of bait allowed, and administrative improvements.

DID YOU ALSO KNOW

  • Ontario’s bait industry is estimated to be worth $23 million per year.

  • In 2020-2021, Ontario is investing over $2 million to support ongoing research, monitoring, and management of invasive species across the province.

  • Ontario is the only jurisdiction in Canada that has standalone invasive species legislation. The Invasive Species Act provides legislative tools to prohibit and restrict certain invasive species and carriers that facilitate the movement of invasive species.

  • Protecting our environment from invasive species by working with partners and other governments and using tools to prevent, detect and respond to invasions is a commitment under the Made-in-Ontario Environment Plan.

  • Anglers spend more than $1.6 billion annually in Ontario and support jobs in many rural and northern communities that depend on recreational fishing.

  • The use of bait is one route for the potential spread of fish-based diseases (e.g., viral hemorrhagic septicemia [VHS]) and invasive species (e.g., round goby) across Ontario.

Additional Resources:

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COURT DEALS ANOTHER BLOW TO EMPLOYERS - BEWARE - EVEN A REMOTE POSSIBILITY OF VIOLATING ONTARIO'S ESA WILL INVALIDATE YOUR EMPLOYMENT CONTRACT. NEED YOUR CONTRACTS AUDITED? CALL US.

In a recent wrongful dismissal case, the Ontario Superior Court of Justice held that a potential violation of the Ontario Employment Standards Act, 2000 (the “ESA”), no matter how remote, will render a termination clause in an employment agreement void and unenforceable.

In this case, the employee was a construction employee employed by Canaan since 2012.

On November 10, 2015, he signed an employment agreement with Canaan, which contained a termination provision that limited his entitlement to the minimum notice upon termination as set out in the ESA. The termination provision did not comment on severance pay or benefits continuation. It further indicated that given that the employee was a construction employee, he was not entitled to any notice or pay in lieu of notice upon termination.

On October 10, 2017, the employee was placed on a temporary layoff. He was never recalled back to work and he was not provided with any pay in lieu of notice.

A few months later, in 2018, the employee commenced an action seeking damages for wrongful dismissal.

Canaan argued that the employee was not entitled to damages for wrongful dismissal as: 1) the employment agreement absolved Canaan from any requirement to give any notice of the lay-off, or pay in lieu of notice; and 2) given that the employee was a construction employee, Canaan had no obligation under the ESA to give notice or termination pay in lieu thereof.

Under the ESA, construction employees are not entitled to notice of termination or termination pay. Throughout his employment with Canaan, the employee was employed as a construction employee.

The Ontario Superior of Justice disagreed with Canaan and concluded that the employee was entitled to notice of termination or pay in lieu thereof, and that such notice was not limited by the ESA. In other words, the employee was entitled to reasonable notice of termination at common-law.

The Ontario Superior Court of Justice held that the termination provision in the employment agreement potentially violated the ESA in the following two ways:

  1. If the employee’s position changed to something other than a construction employee in the future, i.e. a position not exempt from termination pay, the termination provision would be unenforceable as pursuant to his employment agreement he was not entitled to benefits during the statutory notice upon termination.

  2. If Canaan grew in size, employed more than 50 employees and discontinued its business or had a payroll of more than 2.5 million, the employee would be entitled to severance pay (irrespective of his job description). The termination provision of his employment agreement disentitled him to this future benefit.

These two potential violations of the ESA rendered the termination provision unenforceable.

This decision is important as employers are now required to contemplate the future of its business and its employees in a way that addresses future compliance with the minimum standards prescribed by the ESA. Just because an employee does not have benefits, or, just because a business is small and therefore is not obliged to provide statutory severance pay, is no reason to not contemplate these statutory concepts in an employment agreement. This decision once again is a cautionary tale to have employment agreements reviewed periodically by legal counsel.

The Case

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

Credit

Torkin Manes LLP - Shreya Patel [via Lexology.com on July 22, 2020] 

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NEW 10-DAY PAID LEAVE OF ABSENCE IF YOU HAVE COVID SYMPTOMS - THE FEDS' NEW SAFE RESTART PROGRAM EXPLAINED.

Under the federal government’s new $19 billion Safe Restart Agreement, employees who do not have paid sick leave to remain at home when they have COVID-19 or its symptoms will be given temporary income support that will provide each worker with a job-protected leave of absence of ten paid sick days related to COVID-19.

Each province and territory will have to establish the leave for its own jurisdiction by enacting its own regulation or legislation.

Other priorities of the Safe Restart Program investment include:

  • testing, contact tracing, and public health data management;

  • support for the health care system capacity to respond to a potential future wave of COVID-19, and address needs and gaps in support for people experiencing challenges related to mental health, substance abuse, or homelessness;

  • protections and supports to control and prevent infections in seniors and other vulnerable populations, e.g., addressing staffing issues in long-term care, home care, and palliative care facilities and services;

  • procurement of personal protective equipment;

  • funding to enable municipalities to deliver essential services, e.g., public transit; and

  • ensuring the availability of safe child care for parents returning to work.

Federal legislation has not yet been passed to authorize this investment.

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"PAYDAY LOANS" TARGETED BY ONT. GOV. DURING COVID RECOVERY - CAPPING OF INTEREST RATES AND NSF CHARGES.

The Ontario government is proposing changes that would provide additional protection for payday loan borrowers by capping interest rates and fees on defaulted loans, ensuring that workers and families who use payday loan services can keep more of their hard-earned money.

The changes were included in the COVID-19 Economic Recovery Act, 2020.

Proposed amendments to the Payday Loans Act, 2008, would cap the interest rate that lenders can charge on payday loans that are in default.

Lenders would not be permitted to charge interest in excess of 2.5 per cent per month (non-compounded), providing rate relief to borrowers unable to repay their loans on time.

The government would also establish a maximum fee of $25 that may be charged by lenders for dishonoured or bounced cheques or pre-authorized debits. This measure would protect borrowers from having to pay high fees while already facing financial hardship.

If passed, this would be the first time Ontario has taken action to protect borrowers in default from annual interest rates as high as 60 per cent and to establish a maximum fee that may be charged for dishonoured payments.      

Learn more about other supports provided by the Ontario government by visiting COVID-19: support for people.

Quick Facts: 

  • Ontario would join six Canadian jurisdictions that have similar maximum interest rates on payday loans in default, including British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick, and Newfoundland and Labrador.

  • Payday loans are the most expensive form of consumer loans in Ontario.

  • Payday lenders typically have to be repaid two weeks after borrowing the money.

  • The government is also conducting a review of the Consumer Protection Act — the first comprehensive review in almost 15 years.

  • As part of the review of the Consumer Protection Act, the government will consider how to better protect vulnerable consumers who use alternative financial services that are regulated under that act.

Additional Resources

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OUR NEW MADE-IN-ONTARIO INTELLECTUAL PROPERTY PLAN - KEEPING INNOVATION IN THE CKL HOMEGROWN AND PROTECTED.

The Ontario government recently announced a made-in-Ontario Intellectual Property Action Plan to help ensure the tremendous social and economic benefits of taxpayer-funded research and innovation stays right here in the province.

In addition, the government unveiled the second round of research projects approved and supported through the $20 million Ontario COVID-19 Rapid Research Fund.

Through these efforts, researchers will be working to find ways to prevent, detect and treat COVID-19.

The government is hoping to strengthen Ontario's intellectual property (IP) position through the Intellectual Property Action Plan.

The plan is intended to drive the province's long-term economic competitiveness by prioritizing IP generation, protection, and commercialization.

The government is also creating the Special Implementation Team on Intellectual Property (SITIP), which will be comprised of the IP experts who previously served on Ontario's Expert Panel on Intellectual Property.

The team will provide advice on the implementation of the Intellectual Property Action Plan, including the commercialization of research and IP in the province's post-secondary institutions and innovation centres to ensure that Ontario is open for jobs and open for business.

Together, Ontario's SITIP and Intellectual Property Action Plan will respond to the report prepared by the Expert Panel on Intellectual Property and will:

  • Work with postsecondary institutions and research institutes to strengthen mandates related to commercialization entities within their organizations;

  • Strengthen Ontario's IP literacy by developing standardized, web-based basic and advanced IP education curriculums;

  • Create a centralized provincial resource entity that will increase access to sophisticated IP expertise; and

  • Develop a governance framework for organizations supporting entrepreneurial and innovation activities, which incorporates IP considerations.

The post-secondary, research and innovation sector will also take a leading role in Ontario's economic recovery and future prosperity. As part of its strategy to strengthen the research and innovation economy, the Ontario government is funding an additional 20 proposals that were submitted in response to the government's $20 million Ontario COVID-19 Rapid Research Fund. In May, 15 projects were announced as part of the first round and they are focusing on areas such as vaccine development, diagnostics, drug trials and development, and social sciences.

The government is also committing funding to help commercialize the Rapid Research Fund projects here in Ontario, ensuring that taxpayer-funded research benefits Ontarians first.

DID YOU ALSO KNOW

  • The postsecondary education sector is a key source of research, innovation and commercialization, making it one of the leading contributors to Ontario’s productivity and economic growth. Forty-three per cent of all research in Canada is undertaken in Ontario with an economic impact of $85.2 billion since 2011.

  • The government created an Expert Panel on Intellectual Property in May 2019 to provide advice on the commercialization of research and IP in Ontario’s postsecondary institutions and recommend strategies for improved generation and commercialization of research and IP. The panel submitted its report in February 2020.

  • The $20 million Rapid Research Fund was created as an immediate response to engaging the research community on ways to fight COVID-19. Where relevant, a portion of these funds will be used to cover costs associated with licensing and commercialization, including patenting of the valuable IP generated by successful projects to ensure any economic outcomes from these proposals benefit Ontario’s economy, workers and researchers.

  • As part of its summer consultations, the government will seek feedback from colleges, universities, research institutes and other key partners to explore how best to support researchers and ensure that discoveries made in Ontario benefit Ontarians and the Ontario economy.

  • According to a recent Canadian Intellectual Property Office report, small and medium-sized enterprises (SMEs) aware of or holding registered IP rights are more likely to have expanded, or intend to expand, to domestic and international markets. The report also finds that just two per cent of Canadian SMEs hold at least one patent.

  • The Ontario government has an existing memorandum of understanding with Medical Innovation Xchange (MIX) to provide non-medical manufacturing companies with free support as they retool to provide essential supplies and equipment to health care facilities during COVID-19.

Background Information

Additional Resources

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TRAVEL INSURANCE DENIED - CKL SNOWBIRDS' NIGHTMARE - TIPS FOR AVOIDING DENIAL OF YOUR TRAVEL COVERAGE, IF AND WHEN YOU RETURN TO FLORIDA (OR OTHERWISE TRAVEL AGAIN).

It’s every snowbird’s nightmare.

Elderly Mr. X from Ontario bought travel insurance through Manulife before departing for Florida for a winter stay.

He answers questions via telephone with Manulife.

He answered “no” to questions about prior conditions and treatment, seemingly without giving it enough careful consideration.

Manulife emailed him a copy of the completed application for verification.

Mr. X verified it.

In Florida, he became ill. He incurred about $130,000 UDS in medical expenses.

Manulife denied the coverage, on the basis that he misrepresented his prior history in his application. 

Mr. X died.

His estate tried to sue Manulife for the coverage.

His estate lost.

The Court reviewed the Ontario Insurance Act and other applicable law.

The Court concluded that Manulife’s application process was lawful and upheld it – no insurance coverage.

The lesson here for anyone applying for new insurance, particularly travel insurance to go to the U.S. if when that opportunity arises again, including if you already have insurance and before you travel?

  • Listen to the questions carefully

  • Disclose every prior existing condition or treatment (to the extent you can recall it)

  • Double check the written application for verification after you receive it

  • Review your current insurance application to ensure it is accurate and complete

  • Double check you have COVID-19 testing and treatment coverage, if needed

While the Court is unlikely to require every application for insurance disclosure every medical issue in that person’s life historically, it will require that anything of material signifciant be disclosed, which could reasonably impact an insurance company’s decision to offer insurance to the applicant.

Therefore, treat the application process seriously, even if it seems overly informal online, or that the insurance company doesn’t seem overly concerned. They will deny coverage, if that opportunity is available to them.

The case:

Estate of Donald Farb v. Manulife, 2020 ONSC 3037

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NEW CHANGES TO THE WAGE SUBSIDY - 30% RULE GONE - NEW SLIDING SCALE APPLIES - TOO LITTLE, TOO LATE FOR OUR CKL BUSINESSES?

The requirements for the Canadian Emergency Wage Subsidy have been loosened for employers in the CKL. 

They no longer need to prove a 30% or greater revenue setback or reduction to qualify for the CEWS. We are now in period 5 of the CEWS.   

Rather, a new sliding scale approach will prevail.

What you need to know: 

  • the CEWS program is extended to December 19, 2020;

  • it is now available to any qualifying employer that experiences any level of reduction in revenue (not only a 30% reduction); ;

  • employers are eligible for a base subsidy amount proportional (or of equal value) to their revenue decline, up to the maximum subsidy rate;

  • the maximum base subsidy rate is reduced from 75% to 60% for periods 5 and 6 and will continue to decrease gradually to 20% by period 9 (note: this is period 5); 

  • however, employers that qualified for the 75% subsidy under the current/existing program rules will remain entitled to that higher rate for periods 5 and 6, respectively;

  • employers experiencing a reduction of more than 50% in their three-month, rolling average of revenue are entitled to an additional CEWS “top-up” rate of up to 25%;

  • employers may re‑elect between the year-over-year and alternative revenue drop methods. 

More details are promised.Regrettably they are scant at this time. 

These changes are expected to co-ordinate upcoming announcement to phase out the Canada Emergency Response Benefit, shifting the focus more on subsidizing employers to re-start or continue employ, rather than individuals, some of whom may prefer to remain on the CERB rather than return to work. 

 

 

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CKL FARMERS - MORE FINANCIAL SUPPORT - UPPING THE RISK MANAGEMENT PROGRAM. TODAY'S UPDATE.....

The Ontario government is expanding the Risk Management Program a year earlier than planned by $50 million for a total of $150 million annually.

This funding supports farmers with unforeseen challenges such as fluctuating market prices, extreme weather events like flooding or drought, and disease.

Approximately 80 per cent of eligible commercial production in the cattle, hog, sheep, veal, grains and oilseeds, and edible horticulture sectors in Ontario is covered by the provincial Risk Management Program.

The increased investment in the Risk Management Program is in addition to a $15 million Enhanced Agri-food Workplace Protection Program.

Farmers and other operations have access to cost-share funding to help enhance health and safety measures for employees, such as purchasing personal protective equipment, medical testing equipment, enhanced cleaning and disinfection, and temporary or permanent modifications to enhance physical distancing. Support is also available for farmers who experience unexpected costs for housing and transportation as a result of a COVID-19 outbreak on their farm.

DID YOU KNOW

  • Applications for the Risk Management Program will reopen today to allow eligible farmers the opportunity to apply to the program. The deadline to apply closes at midnight on July 30th, 2020.

  • Producers should contact the Ministry of Agriculture, Food and Rural Affairs’ delivery agent, Agricorp, to enroll in the Risk Management Program and AgriStability or to discuss their individual files.

  • In response to COVID-19, the federal and Ontario governments have added labour as an insured risk to Production Insurance for the 2020 growing season.

  • Canada and Ontario have also announced up to $10 million of support for beef and pork sectors through AgriRecovery.

  • Ontario has an estimated 49,600 farms that contribute an estimated $7.6 billion annually to the province’s economy.

More Information

Additional Resources

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SAFE RESTART - $19B FED FUNDING TO WEATHER THE STORM. TODAY'S UPDATE.....

The federal government has announced a federal investment of more than $19 billion to help provinces and territories safely restart their economies and to make us hopefully more resilient to possible future waves of the virus.

This investment, through the Safe Restart Agreement, will help address the key priorities, agreed upon by Canada’s First Ministers, for the safe restart of Canada’s economy over the next six to eight months. It will support measures to increase testing and contact tracing of the virus to protect Canadians from a future outbreak, and support the capacity of our health care systems, including services for people facing mental health challenges. It will also assist with the procurement of personal protective equipment to help our essential workers, and in protecting the most vulnerable, like our seniors.

The agreement will also help get funding quickly to municipalities so they can deliver essential services that Canadians rely on every day, like public transit. In addition, it includes actions to help Canadian workers during this challenging time, such as ensuring the availability of safe child care to help parents returning to work, and providing income support for people who do not have paid sick leave so all Canadians can stay healthy.

During this time of uncertainty, the Government of Canada is putting Canadians first by working together with our provincial and territorial partners to lay the groundwork to keep our communities strong and healthy, and ensure our economy is resilient.

 

Quick Facts

  • New federal funding will address seven priority areas:

    • enhanced capacity for testing, contact tracing, and data management and information sharing to mitigate future outbreaks.

    • investments in health care to respond to the pandemic, including support for Canadians experiencing challenges with substance use, mental health, or homelessness.

    • support for vulnerable Canadians – including those in long-term care, home care, and palliative care – who are at risk of more severe cases of COVID-19.

    • funding to secure a reliable source of personal protective equipment, and to recover some of the costs from previous investments made by provincial and territorial governments.

    • support to ensure that safe and sufficient child care spaces are available to support parents’ gradual return to work.

    • joint funding with the provinces and territories to support municipalities on the front lines of restarting the economy, including by putting in place precautions for public spaces and essential services to reduce the spread of the virus, as well as a dedicated stream of funding for public transit.

    • a temporary income support program that will provide workers who do not have paid sick leave with access to 10 days of paid sick leave related to COVID-19.

  • To access the funding, each province and territory will need to outline how they will invest these funds.

  • New federal investments for the safe restart of our economy are in addition to previous funding provided to provinces and territories and Canadians, as we deal with the impacts of COVID-19. This includes:

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CKL BUSINESSES - EMERGENCY WAGE SUBSIDY (CEWS) EXTENDED TO DECEMBER - YOUR UPDATE TODAY. New Page

The Canada Emergency Wage Subsidy (the "CEWS") intended to assist and support businesses that had been impacted by the COVID-19 pandemic.

The aim of the wage subsidy is to enable businesses to rehire workers previously laid off as a result of COVID19, help prevent further job losses and better position companies to resume normal operations.

In May the program was extended to August 29th.

Now, the federal government announced that it will be extending the emergency wage subsidy program to December 2020.

The aim of the program is to provide greater certainty and support to businesses as the economy is restarted.

The program covers 75% of wages, up to a weekly maximum of $847 for workers at eligible companies and non-profits that have been affected by the economic slowdown caused by the COVID-19 pandemic.

To be eligible for the subsidy, the employer must have experienced a reduction in revenue during the time period during which the subsidy is claimed of 30% and have a CRA payroll account as of March 15, 2020.

Eligibility requirements remain the same with the extension of the program.

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UPDATED (NEW) DIRECTIVES FOR MASKING FROM THE HEALTH UNIT - TODAY'S UPDATE.

Our Health Unit has updated its making directive for "commercial establishments" and indoor, public places: 

  • Indoor mask use now applies to any place of business or facility that is indoors and currently open to the public under Stage 3 . Public settings include: retail stores, churches/places of worship, public libraries, real estate open houses, personal care services (relating to the hair or body), restaurants/food courts, fitting rooms, driving instruction services, sports and recreation facilities, movie theatres, performing arts centres, casinos/bingo halls, and museums/cultural centres.

  • While face coverings must be worn in most indoor places and situations open to the public, the exception is when patrons are ‘in place’ and no longer ‘roaming’ inside the premises. In the case of eating inside a restaurant, patrons would not have to wear masks if sitting at their table (entering, exiting and walking around the food premise would require masks). In gyms and fitness clubs, masks would be worn in change rooms, washroom and waiting areas, but not when people take part in an activity or sport. At indoor weddings, funeral services, or religious services/rites/ceremonies, attendees would have to wear masks until seated with a secured distance of 2 metres (6 feet) from others. Movie patrons and theatregoers would also have to remain masked until they were seated with a secured distance of 2 metres (6 feet) from others.

  • People who remain exempt from wearing masks indoors include: children under 2; children under age 5 (developmentally or in actual years) who refuse to wear masks; individuals who cannot remove a mask without help; and people with medical conditions like respiratory disease or cognitive difficulties.

Businesses/facilities are expected to use “best effort” to ensure patrons and members of the public wear a mask by pointing out the Health Unit instructions.

No one should be denied service if they cannot wear a mask. However, everyone should try to be understanding of those individuals who have a legitimate reason not to wear a mask.

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WHAT IS MY "CREDIT SCORE"? WHY DO I CARE? HOW DO I FIX IT? HELP AVAILABLE HERE.

WHAT IS MY CREDIT SCORE AND WHY DO I CARE ABOUT IT?

Your “credit score” ranges from 300 to 900. It is used to evaluate your creditworthiness.

For example, credit card companies, banks, landlords and other lenders may use your score to determine the risk factor when loaning you money, renting you a property or deciding on the amount of credit to give you.

Your credit score is calculated using a formula based on your credit report.

These reports are created by credit bureaus— namely, Equifax and TransUnion.

They collect, store and share information about how you use credit.

Your credit score will change over time with your actions and assets.

Your credit history follows you everywhere, unfortunately.

Each time you pay a bill, take out a loan or open a card or account, it is likely to impact your credit report.

What’s more, if you miss a payment, or default on a loan, or max out an account, it will likely circle back to you and be traced to your credit score, negatively.

Most of us fail to realize our credit scores may have been negatively impacted.

It can be a pernicious, insipid process.

Usually each lender has its own minimum credit score that is required to lend, meaning that if your credit score is too low, you might not be approved.

However, if your credit history is adequate, you may be able to get a lower interest rate on loans, which can save you a lot of money over time.

Credit reports are also important when looking for signs of identity theft or fraud.

At least once a year, you should check to make sure someone has not tried to open credit cards or other loans in your name.

WHAT DO I AVOID TO KEEP GOOD CREDIT?

You get credit points for keeping up to date on your obligations. You get negative points for failing to do so. 

Avoid these things:

  • - regularly missing or getting behind on payments

  • - reaching or going over your credit limit

  • - bankruptcy and consumer proposals

  • - debts sent to a collection agency

  • - the amount of your outstanding debts – keep it reasonable

HOW DO I FIX MY CREDIT SCORE?

The best way is to contact a credit counselor, who could guide you on the best steps to take.

 

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WELCOME TO STAGE 3, CKL. WHAT YOU NEED TO KNOW.

The Ontario government has announced nearly all businesses and public spaces will reopen in Stage 3 of the province's reopening framework with public health and workplace safety measures and restrictions in place.

As part of the Stage 3 reopening, Ontario will be increasing gathering limits for those regions entering the next stage to the following:

  • Indoor gathering limits will increase to a maximum of 50 people;

  • Outdoor gathering limits will increase to a maximum of 100 people;

  • Gathering limits are subject to physical distancing requirements.

Public gathering limits apply to indoor and outdoor events, such as community events or gatherings, concerts, live shows, festivals, conferences, sports and recreational fitness activities, fundraisers, fairs, festivals or open houses. A two metre distance must still be maintained at such events.

Regions remaining in Stage 2 will maintain the existing gathering limit of 10. Social circles in all stages at this point will also be kept to a maximum of 10 people province-wide, regardless of stage.

The Chief Medical Officer of Health, public health experts and other officials have advised the following, high-risk places and activities are not yet safe to open, even if a region has entered Stage 3, due to the likelihood of large crowds congregating, difficulties with physical distancing, or challenges maintaining the proper cleaning and sanitation required to prevent the spread of COVID‑19:

  • Amusement parks and water parks;

  • Buffet-style food services;

  • Dancing at restaurants and bars, other than by performers hired by the establishment following specific requirements;

  • Overnight stays at camps for children;

  • Private karaoke rooms;

  • Prolonged or deliberate contact while playing sports;

  • Saunas, steam rooms, bath houses and oxygen bars;

  • Table games at casinos and gaming establishments.

For more information on the restrictions that will remain in place during Stage 3, as well as the public health guidance necessary to keep the people of Ontario safe, visit Ontario.ca/reopen.

The province is committed to working closely and collaboratively with businesses and sectors not yet able to reopen or who are experiencing significant challenges for reopening due to Stage 3 restrictions. These businesses can visit Ontario.ca/reopen to work with the government on a reopening proposal that will enable them to safely resume or increase operations. Government and public health officials will review proposals and contact businesses for feedback or clarifications.

The following public health unit regions will be allowed to move into Stage 3 first, on Friday, July 17, 2020:

  • Algoma Public Health

  • Brant County Health Unit

  • Chatham-Kent Public Health

  • Eastern Ontario Health Unit

  • Grey Bruce Health Unit

  • Haliburton, Kawartha, Pine Ridge District Health Unit

  • Hastings Prince Edward Public Health

  • Huron Perth Public Health

  • Kingston, Frontenac and Lennox & Addington Public Health

  • Leeds Grenville & Lanark District Health Unit

  • Middlesex-London Health Unit

  • North Bay Parry Sound District Health Unit

  • Northwestern Health Unit

  • Ottawa Public Health

  • Peterborough Public Health

  • Porcupine Health Unit

  • Public Health Sudbury & Districts

  • Region of Waterloo Public Health and Emergency Services

  • Renfrew County and District Health Unit

  • Simcoe-Muskoka District Health Unit

  • Southwestern Public Health

  • Thunder Bay District Health Unit

  • Timiskaming Health Unit

  • Wellington-Dufferin-Guelph Public Health

Businesses and municipalities will be permitted to enter Stage 3 based on their region and, as in the previous stages, may choose to take more time before reopening. For a list of regions that will remain in Stage 2, visit Ontario.ca/reopen.

At the beginning of each week, the province will continue to reassess local trends in public health indicators, including rates of transmission, hospital capacity, progress on testing and contact tracing, to determine if additional public health unit regions can progress to Stage 3. The Chief Medical Officer of Health and other public health experts will continue to closely monitor the evolving situation to advise when public health restrictions can be further loosened or if they need to be tightened or reapplied.

As the province safely and gradually enters Stage 3, child care centres and home child care providers across Ontario will be able to continue to operate with strict safety and operational requirements in place.

Beginning on July 27, 2020, child care centres will be permitted to operate with cohorts of 15 children, which is an increase from the current cohort cap of 10. This change will allow parents to return to work, and bring the child care sector to approximately 90 per cent of its operating capacity before the COVID-19 outbreak.

The government, in partnership with health and safety associations, has released over 170 guidance resources at Ontario.ca/COVIDsafety to help employers in multiple sectors ― including fitness, restaurant and food services, and the performing arts ― keep spaces safe for workers and customers. Guidance will be available for all spaces permitted to open in Stage 3. As they prepare to reopen, employers are strongly advised to review and implement appropriate measures to help protect their communities.

Based on community needs, some municipalities and local medical officers of health have implemented more restrictions or requirements, such as mandatory face coverings in commercial establishments and all indoor public places. Check your local public health unit's or local municipality's website.

DID YOU ALSO KNOW

  • The government invites businesses not able to open or resume full activities due to Stage 3 restrictions to visit Ontario.ca/reopen to submit a reopening proposal.

  • For questions on restrictions that will remain in place during Stage 3, review the Stage 3 Emergency Order on the emergency information portal or call the Stop the Spread Business Information Line at 1-888-444-3659.

  • The Ontario government has launched a website to provide businesses with information on personal protective equipment (PPE) suppliers. The Workplace PPE Supplier Directory has an up-to-date list of Ontario companies and business associations that are ready to supply PPE.

  • The government has also launched the $50 million Ontario Together Fund to support the development of proposals submitted by businesses and individuals through the Ontario Together web portal to help businesses retool their operations.

  • Free online workplace health and safety training is available through Employment Ontario for up to 100,000 job seekers, with topics such as infection control, conducting health and safety incident investigations, ladder safety, slips, trips and falls prevention. Contact an Employment Ontario service provider in your area to enroll.

  • Peter Bethlenfalvy, President of the Treasury Board, is leading a new committee focused on strengthening the work of the Ontario government following the COVID-19 pandemic. The committee will ensure public sector services are customer focused and digital- and data-driven, while increasing the speed of government operations and decisions.

  • Find sector-specific guidelines and return-to-sport resources to help facilities, trainers and athletes safely return to play and recreation activities in Ontario at Ontario.ca/returntoplay.

Additional Resources

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REAL ESTATE IS HEATING UP IN THE CKL, BUT REMEMBER THE RESTRICTIONS FOR OPEN HOUSES AND IF THERE IS A TENANT. WHAT YOU NEED TO KNOW.

As the buy/sell of residential and commercial real estate heats up again in the CKL, remember the restrictions that continue to apply during the provincial state of emergency: 

No “Open Houses”:

The Government of Ontario has prohibited the hosting of in-person open houses during the state of emergency.

In addition, RECO has strongly recommended that brokers and salespersons follow the direction of health officials by limiting showings to situations where they are necessary.

This means that you may only have physical access to a property at the final stages of consideration where historically, many buyers would walkthrough a property at the beginning of the consideration process.

Speak with your broker or salesperson regarding property showings, as access may be restricted and, in some cases, not permitted.

Can I Book Back-To-Back Private Showings?

This is an approach to discuss with your salesperson.

Hosting showings “back to back” may not be practical or convenient for everyone involved.

Speak with your representative to ensure that if multiple showings are scheduled for the same day that consideration has been given to establishing a process for sanitizing high-touch areas, like door handles and countertops, between visits. this will lessen the risk of transmission to you, your loved ones and visitors to your property.

Is There a Residential Tenant?

Showings should only occur with the tenant’s consent or in accordance with lawful notice provisions contained within the Residential Tenancies Act (RTA) which is enforced by the Landlord and Tenant Board (LTB). RECO has recommended that parties hold off on showings if they do not have the tenant’s consent.

Speak with your salesperson about what you can and may need to do to in the case that there are particular health concerns on the part of the tenant.

Many salespersons and brokerages have established protocols that respect the needs and concerns of tenants that will allow serious buyers to safely view the property.

If protocols are not already in place your salesperson may be able to negotiate a plan that will satisfy all parties. If they are unable to agree to terms that will allow a showing, you will need to make a decision on how comfortable you may be regarding finalizing a purchase without a showing.
 

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CHECK IN WITH YOUR EMPLOYEES DURING COVID-19 - WARDS LAWYERS' SAMPLE SURVEY TO USE FOR YOUR EMPLOYEES - MAKE SURE YOU KNOW HOW YOUR WORKPLACE IS DOING.

Businesses and orgs in the CKL – would it be a good time to collectively check in with your employees during the pandemic?

We do, regularly.

Here is a sample of how you might do so. These are questions we surveyed to our entire office, using surveymonkey.com.

You could modify your questions as necessary – this is general guidance only.

Every employee completes the survey online, through the app, and you get the results in a compact, easy-to-review format.

It’s mostly a multiple choice format. You can design your multiple chance answers depending on the information you want to obtain from your employees.  

Here you go………

Q1

The Firm has taken appropriate action in response to COVID-19

Strongly agree

Agree

Do not agree

Strongly disagree

Q2

The Firm has done a good job of sharing information regarding COVID-19

Q3

The Firm cares about my health and safety

Q4

I have confidence in the Firm's ability to overcome the challenges faced by COVID-19

Q5

I feel comfortable communicating concerns or making suggestions about COVID-19 to the Firm

Q6

Systems are in place to enable social distancing within the Firm

Q7

My co-workers are taking COVID-19 seriously

Q8

I am comfortable returning to work at this time

Q9

I understand the new health and safety protocols that have been put in place to address COVID-19

Q10

What were the TOP THREE biggest challenges you experienced while working remotely?

Childcare

Social isolation

General anxiety about the impact of coronavirus on my life

Q11

I would be more comfortable working from home if that option was presented to me

Q12

Is there anything more that the Firm could do to support your return to work? 

Q13

What is your single greatest work-related concern right now?

Q14

How worried are you about the impact of COVID-19 on you personally?

Q15

How worried are you about the impact of COVID-19 on the Firm?

Q16

What has the Firm done in response to COVID-19 that has positively impacted your work experience?

Q17

How confident are you that you have the right resources and benefits from the Firm to help support you through this period?

Q18

Do you have any questions about COVID-19 and its impact on the Firm that you would like answered?

Q19

How confident are you in the Firm's leadership team to make the right decisions to manage through this crisis?

Q20

Do you have any other feedback that you would like to share regarding the Firm's response to COVID-19?

 

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FIRING AN EMPLOYEE? JASON'S AND CALVIN'S TERMINATION CHECKLIST - CHECK THIS BEFORE YOU TERMINATE.

CHECKLIST – THE TERMINATION MEETING

In most cases, the termination should be communicated in a meeting with the employee at which they are advised of the termination and the reasons for it, and are provided with a termination letter.

Where the termination is for disciplinary reasons or for cause, ensure that the investigation is complete and that you have given the employee an opportunity to respond to the concerns or allegations before finalizing your decision.

BEFORE THE MEETING:

Make sure you have a private room set aside.

Make sure there is Kleenex in the room.

Ensure that all documentation is complete before the meeting.

The meeting should be held late in the day or first thing in the morning, if possible, early in the employee’s work week.

Be clear on what you will say and practice – keep it short and to the point.

AT THE MEETING:

If possible, try to have a second person (managerial) in the meeting to witness the termination.

Tell the employee clearly that her or his employment has been terminated and the date when the termination is effective.

Be clear and brief on the reason for the termination (e.g. poor performance, job elimination, disciplinary reasons, absenteeism, etc.).

Do not provide a long-winded explanation; clearly communicate that the decision has been made and that it is final. Do not get involved in a debate about the decision.

Hand the employee the signed letter of termination. This should spell out:

  • the reason for and the effective date of the termination (as communicated verbally);

  • any payments in lieu of notice and/or severance pay that are being offered;

  • the date on which benefits coverage will cease, if applicable; and

  • that any unpaid wages, vacation pay, etc. will be paid out.

  • Bring the meeting to a close in the appropriate manner depending on circumstances (e.g. thank the employee for service rendered and wish her or him luck; invite employee back to work area to pack-up belongings; request return of any property and/or ID, etc.).

  • If the staff member will be leaving immediately, ensure there are boxes available for packing personal items.

  • Under some circumstances it may be preferable to ask the employee to leave immediately and return after hours (later in the day/later that week) to clear out her or his desk without disrupting the company/business. This after-hours move should always be supervised.

  • Communicate termination to relevant co-workers. Craft communication to suit the circumstances and be professional.

ADMINISTRATIVE MATTERS:

There are certain administrative steps to take as part of the termination of an employee.  As much as possible, these steps should be undertaken or prepared prior to the termination. This may not be an exhaustive list, depending on your specific circumstances at the time:

Employer Property

  • Office keys/pass collected                                          Yes    No  N/A

  • Cell/Smart phone received                                         Yes    No  N/A

  • Employment manual/handbook                                  Yes    No  N/A

  • Client lists received                                                    Yes    No  N/A

  • Corporate credit card received                                   Yes    No  N/A

  • Company laptop/computer returned                            Yes    No  N/A

  • Parking pass/tags received                                         Yes    No  N/A

Access Cancellation:

  • Disconnect computer access (e-mail, networks, cell and data).

  • Employee’s voicemail removed.

  • Building alarm code changed, if necessary.

  • Change any computer access codes or passwords, if necessary.

  • Email address removed from staff list.

  • Name removed from time entry system (if applicable).

  • Make any needed banking information/authorization changes if needed.

Administrative Issues:

  • Desk cleared, available for replacement.

  • Name removed from staff phone listing.

  • Name removed from mail slot.

  • Update website/internal directories/phone directories.

  • Do any clients/third parties require notification?

  • Automatic email notification to alert senders and redirect emails (voice-mail as well).

  • Create back-up of computer files and e-mail.  

Benefits (if applicable):

  • Have insurance providers been notified?

  • Will insurance coverage continue? For how long?

  • When will retirement contributions (if any) be stopped?

Final Pay:

  • Final hours calculated.

  • Final paycheck prepared.

  • Ensure any outstanding vacation pay/lieu time is calculated and included in final pay.

  • Arrange for preparation and issuance of ROE.

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

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

  • termination of any employee, with or without cause;

  • suspension of any employee, with or without pay; 

  • workplace harassment/sexual harassment complaint; and 

  • workplace investigation of any kind,

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

© WARDS LAWYERSPC

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

PRE-TERMINATION CHECKLIST

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

_________________________________

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

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

  • termination of any employee, with or without cause;

  • suspension of any employee, with or without pay; 

  • workplace harassment/sexual harassment complaint; and 

  • workplace investigation of any kind,

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

© WARDS LAWYERSPC

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

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

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

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

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

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

    • labour redeployment or workplace and management rules;

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

    • compliance with public health advice; or

    • rules related to gatherings and organized public events;

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

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

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

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A - Z. SIMPLE. EVERYTHING YOU NEED TO KNOW ABOUT NEW MANDATORY NON-MEDICAL MASKS IN THE CKL FOR BUSINESSES, INCLUDING ENFORCEMENT, REPORTING, MANAGING CONFLICT AND PENALTIES FOR NON-COMPLIANCE.

When Must I Wear A Non-Medical Mask?

Under instructions issued by the local Medical Officer of Health (the “MOH”), area businesses will have to have a policy in place that requires people to wear a non-medical mask or face covering before entering their commercial establishment. 

This applies to all owners and operators of commercial establishments currently open during Stage 2 of the province’s reopening.

The instructions have been issued under the authority of Ontario Regulation 263/20 under the provincial Emergency Management and Civil Protection Act (EMCPA).

When?

The requirement for non-medical mask or face covering use within local businesses will come into effect at 12:01 am July 13, 2020.

The use of masks will be required while the provincial Emergency Order remains in force or until such time that the MOH lifts the requirement.

What Businesses Does This Apply To? What Is An Establishment?

Under the Health Unit’s instructions, commercial establishments are premises that are openly accessible to members of the public and used for the purposes of offering goods or services for sale.

An establishment would include a mall or other structure containing commercial premises, including: retail stores, convenience stores, restaurants, personal services settings, grocery stores and bakeries, gas stations, indoor farmers’ markets, areas of mechanics’ shops/garages/repair shops, which are open to the public.

Who Does This Apply To?

If you own or operate a commercial establishment currently operating under Stage 2 of the provincial reopening, you must have policies in place to stop people from entering your establishment if they are not wearing a non-medical mask or face covering.

What If I Refuse?

Every operator of an enclosed public space will have a policy to ensure that no member of the public is permitted to enter or remain in the public areas of the enclosed public space unless they are wearing a mask in a manner that covers their nose, mouth and chin.

People in an enclosed public space who remove their mask for extended periods of time, will receive a verbal reminder of the requirement to wear a mask under these instructions.

The policy of the commercial establishment should be enacted and enforced in ‘good faith’ and should be used as an opportunity to educate about the use of non-medical masks or face coverings in indoor commercial establishments. Additional education and enforcement will be conducted by Health Unit staff, as well as local municipal bylaw and police officers.

Who is Exempted?

There are exemptions to the policy and a person will be exempt from wearing a non-medical mask or face covering in the premises if:

  • the person is a child under the age of two years; or a child under the age of 5 years either chronologically or developmentally and he or she refuses to wear a face covering and cannot be persuaded to do so by their caregiver;

  • the person is incapacitated and unable to remove their mask without assistance;

  • for any other medical reason, the person cannot safely wear a non-medical mask or face covering such as, but not limited to, respiratory disease, cognitive difficulties or difficulties in hearing or processing information; and

  • for any religious reason, the person cannot wear a non-medical mask or face covering or cannot cover the face in a manner that would properly control the source.

How Do I Make or Choose the Best Mask For Me?

In choosing a non-medical mask, ensure it is:

  • made of 2+ layers of tightly woven fabric (such as cotton or linen);

  • well-fitted with ear loops or ties;

  • a comfortable fit against your face and allows you to breathe easily without having to adjust it;

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

  • durable to allow you to frequently wash and dry it without losing its shape.

Other options for non-medical masks include wearing a bandana or scarf, or making one out of a T-shirt or a bandana.

The Public Health Agency of Canada also offers instructions on how to make a homemade face coverings.

Can a Business Refuse to Serve Me If I Refuse to Wear as Mask?

The implementation of the policy should be enforced in “good faith” and any person not wearing a mask will receive a verbal reminder from the staff of the establishment.

However, any commercial establishment can also assert Ontario’s Trespass To Property Act, RSO c. T.21 to disallow entry of any person who refuses to wear a non-medical mask – notice should initially be given to the person. 

In addition, business owners have a right at common law to exclude entry to any person who fails to lawfully comply with a health directive or order. 

How Will This Be Enforced?

Every owner/operator of a commercial establishment will have a policy to ensure that no member of the public is permitted to enter or remain in the public areas of the enclosed public space unless they are wearing a mask in a manner that securely covers their nose, mouth and chin.

Employees and operators will provide a verbal reminder to any customer entering the premises without a mask that the customer should be wearing a mask as a result of this directive.

Implementation of the policy will be enacted and enforced in ‘good faith’ and will be primarily used as a means to educate people on mask use in public spaces.

Public Health Inspectors from the HKPR District Health Unit, as well as municipal bylaw and local police officers will be involved in providing additional education and enforcement to operators of commercial establishments.

However, any commercial establishment can also assert Ontario’s Trespass To Property Act, RSO c. T.21 to disallow entry of any person who refuses to wear a non-medical mask – notice should initially be given to the person. 

In addition, business owners have a right at common law to exclude entry to any person who fails to lawfully comply with a health directive or order. 

Will Fines Be Levied for Non-Compliance? What Is The Penalty?

As noted above, implementation of the policy will be enacted and enforced in ‘good faith’ and will be primarily used as a means to educate people on mask use in public spaces.

As per Ontario’s Emergency Management and Civil Protection Act, those businesses that do not comply with the instructions may be liable for a fine of $750 to $1,000 for an individual, to a maximum of $100,000, or in the case of a corporation, not more than $10,000,000 for each day or part of each day on which the offence occurs or continues.

Can I Ever Remove My Mask In Public?

Members of the public are permitted to temporarily remove a mask for the following reasons:

  • receiving services (including eating or drinking when dine-in services are allowed), or

  • while actively engaging in an athletic or fitness activity including water-based activities.

Ensure you wash your hands using soap and water or an alcohol-based hand sanitizer before and after removing your mask or face covering.

Do I Report Local Business Not Requiring Customers to Wear Masks?

Yes.

For more information on the Health Unit’s instructions to commercial establishments to require the use of masks by patrons, or to report a non-complying business, call the Health Unit toll-free at 1-866-888-4577, ext. 5020.

How Do I Properly Use a Non-Medical Mask?

In choosing a non-medical mask, ensure it is:

  • made of 2+ layers of tightly woven fabric (such as cotton or linen);

  • well-fitted with ear loops or ties;

  • a comfortable fit against your face and allows you to breathe easily without having to adjust it;

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

  • durable to allow you to frequently wash and dry it without losing its shape.

Other options for non-medical masks include wearing a bandana or scarf, or making one out of a T-shirt or a bandana. The Public Health Agency of Canada also offers instructions on how to make a homemade face coverings.

Do Even Workplace Staff Have to Wear Masks In the Business

Yes. Staff are to wear masks when they are in those portions of a fixed commercial premises that are openly accessible to members of the public and that are used for the purposes of offering goods or services for sale to members of the public.

They are not required in lunch rooms, storage areas, prep areas etc. The areas of a commercial establishment that are subject to the non-medical mask and face covering requirements of these instructions are:

- any areas in which customers interact with one another or with staff members; 
- any areas that are open or accessible to members of the public; and 
- except where: the area is outside, whether or not the area is covered (e.g. a restaurant patio). 

What Should All CKL Commercial Businesses Now Do?

To comply with this new law, and with employer obligations under Ontario’s Occupational Health and Safety Act, employers should review these requirements and any other provincial or municipal directives to ensure they are following the latest safety requirements.

Businesses in the CKL should now:

  • create and post a written mask policy for the establishment;

  • communicate this new policy to staff and customers - post is prominently in your business/workplace;

  • train your staff on the policy, including when staff and customers must wear a mask or face covering, what to do if a customer refuses to wear one, and who is exempt from wearing one; 

  • verbally remind all attendees/customers who enter without a mask that they are legally required by order of the local Health Unit - avoid confrontation with customers by contacting the Health Unit for assistance; and 

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

The Health Unit will consider the above steps, if followed, as discharging your "good faith" and "best efforts" responsibility for his new legal obligation. If any conflict arises, attempt to distill and avoid, including by contacting the Health Unit for guidance and direction.  

Face masks and coverings do not replace the need to keep a distance of two metres or six feet from others, wash hands often, and stay home when sick.

Employees should continue to work from home if possible.

For more information about the instructions requiring non-medical mask use or face coverings, visit the Health Unit’s website at www.hkpr.on.ca or call toll-free at 1-866-888-4577, ext. 5020.

What About Professional Offices or 'By Appointment Only' Businesses

Establishments that do not fall under the definition of a commercial establishment are: schools, child care centres, business offices that are not open to members of the public, professional offices where clients receive purchased services (e.g., lawyers’ offices) that are not open to members of the public, hospitals, independent health facilities and offices of regulated health professionals.

Do I Have to Supply Customers With Masks

This is not legally required, but not having a mask is not a valid 'exemption' so it may be to the benefit of the business to have masks for these circumstances.

So, have masks available to those who do not have one.
 

Can I Use Only a Facial Shield Instead

Face shields are not equivalent for source protection to non-medical masks. Face shields should only be considered as an alternative for those staff that are not able to tolerate masks due to age or a condition of some kind.

Is It Okay To Simply Hide Behind a Hygiene Screen

No. Masks must be worn by staff when in areas used by the public.

Formal Directions to “Commercial Establishments”

The Health Unit’s letter to all “commercial establishments” is here: https://www.hkpr.on.ca/wp-content/uploads/2020/07/Commercial-Establishments-EMCPA-July-2020.pdf

MOH’s Fact Sheet

The Health Unit’s “Fact Sheet” for this new directive is here: https://www.hkpr.on.ca/wp-content/uploads/2020/07/HKPR-COVID-factsheet-Mandatory-Non-Medical-Masks.pdf

Video – How To Use a Non-Medical Mask

A video about how to use a non-medical mask properly is here: https://www.youtube.com/watch?v=lc1mqyPCOpo&feature=youtu.be

Posters For Your Business

Posters to prominently post in your workplace/business are available here: https://www.hkpr.on.ca/wp-content/uploads/2020/07/HKPR-COVID-poster-Protect-Yourself-Wear-A-Mask.pdf

Need a Written Mask Policy

Give us a call - we'll set you up in no time.  

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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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