HOW SHOULD EMPLOYERS RESPOND TO EMPLOYEES WHO HAVE CHILDCARE OBLIGATIONS DURING COVID-19?

The workplace will soon be an even trickier place to navigate when considering the new challenges that employers are faced with in accommodating their employees’ family responsibilities.

When the COVID-19 pandemic dramatically changed the state of the world in March 2020 and made employees’ normal childcare arrangements generally unavailable, Canadian employees (other than some essential workers) began to work from home. As the rate of infection diminished, Canada gradually reopened; most jurisdictions are now in Stage 3 of their reopening processes, with public health and workplace safety restrictions in place. Many businesses and public spaces have reopened, and while many employers have asked their employees to return to work, some have asked their employees to continue to work from home.

In the meantime, the world has not returned to normal for employees’ children. Daycare centers that initially remained open provided childcare for only essential workers; in the spring, other daycares opened with strict health and safety guidelines in place. Camps did not operate in the summer. Although there are plans to get children back into the classroom in the fall, many schools intend to adopt a hybrid model due to social distancing requirements, with students in the classroom on some days only, and learning online the rest of the week. A hybrid back-to-school arrangement, together with the possibility that schools might close upon the occurrence of a second wave, or upon a COVID-19 outbreak within a specific school, will create childcare difficulties for employees. Furthermore, some parents who have childcare options available to them in the form of school, daycare, or babysitters may resist using them due to anxiety about the risk of exposing their children or another family member to COVID-19.

In responding to employees who have childcare issues, employers have several options to consider. They include providing employees with flexible accommodations; placing them on unpaid statutory leave under applicable employment standards legislation; or in the rare circumstances in which employees may be entitled to it, placing them on paid leave made available through a collective agreement in a unionized context, an employment contract, or a workplace policy. We consider all of these options below.

 

Family Status Accommodation

We wrote extensively about the unsettled legal approach to family status accommodation in Canada. As noted, although human right statutes in Canada prohibit discrimination based on family status, historically family status complaints, which most often relate to discrimination in employment, are generally made infrequently, especially as compared with discrimination complaints on other grounds. The frequency of family status complaints may rise in a COVID-19 environment and we recommend that employers become familiar with the unsettled approach to family status discrimination in Canada.

In normal circumstances, a family status complaint will generally fail if it is based on a preference to care for a child at home rather than a need to do so. However, in a pandemic scenario, even if schools and daycares are available, some employees may be concerned that their children or other family members will become ill with COVID-19 if their children attend. While employees are generally expected to explore other childcare options during business hours, such as babysitting by a grandparent or a paid babysitter, they may resist these options during the pandemic to protect the health of the grandparent and/or the child. For this reason, in the extraordinary context of the pandemic, employers should consider accommodating their employees by developing a flexible company-wide accommodation policy that takes a reasonable approach to their employees’ circumstances. This may include allowing employees to work from home or modify their work schedules or work duties, and tolerating disruptions from children during teleconference meetings.

 

Unpaid Leave

Despite an employer’s best efforts to provide a feasible accommodation to an employee, it may not be able to find one. If accommodation is not an option, employees may be entitled to unpaid leave under applicable employment standards legislation. For example, in Ontario, the following unpaid, job-protected leaves may be available to parents whose children are at home during the COVID-19 pandemic:

Family Responsibility Leave: After working for an employer for at least two consecutive weeks, most employees in Ontario have the right to take up to three days of unpaid job-protected leave each calendar year because of an illness, injury, medical emergency or urgent matter relating to, among others, the employee’s child, step-child, or foster child. As the circumstances surrounding the COVID-19 pandemic are unprecedented, it is unclear whether, when employees decide to keep their children at home even when schools and daycares are open, the courts will characterize the matter as “urgent.” However, in a hybrid school model, on days when children are not allowed to attend school and must learn online, courts may be more likely to characterize the matter as “urgent” and entitle the employee to this unpaid leave; on days when classes are on the school’s premises, courts may not be inclined to do so.

Infectious Disease Emergency Leave: In response to the COVID-19 crisis, the governments of a number of jurisdictions in Canada amended their employment standards legislation to entitle employees to emergency unpaid job-protected leave when they are unable to work for reasons related to the designation of COVID-19 as an infectious disease. In Ontario, for example, the new unpaid Infectious Disease Emergency Leave applies when an employee will not be performing work because the employee is providing care to a specified list of individuals for reasons related to COVID-19, including to children, because of closures of schools and daycares. Entitlement to Infectious Disease Emergency Leave continues as long as the circumstances apply and COVID-19 continues to be a designated infectious disease. Note that if the school or daycare is open, the employee will not be entitled to this leave. If employees have children attending a hybrid model school, they may be entitled to Infectious Disease Emergency Leave on days when their children may not attend school and must learn online.

Finally, in rare circumstances, some employers may have agreed that their employees will be entitled to paid leave if they have childcare obligations in a scenario like the one we are currently facing, for example, pursuant to a collective agreement in a unionized environment, or pursuant to an employment agreement or a workplace policy. Employers are encouraged to consider whether their employees are so entitled before placing them on unpaid leave under applicable employment standards legislation.

 

Bottom Line for Employers

The pandemic has made it impossible to predict exactly how courts will treat employees who fear sending their children to daycare or school and choose to keep them at home. Although these employees may not be strictly entitled to family status accommodation, in the unprecedented circumstances of a global pandemic, we recommend that employers adopt a flexible approach to accommodating employees who have children at home, whether due to preference or a lack of other options. If flexible accommodation is not a viable option, we recommend that employers consider placing these employees on unpaid leave, after first considering whether they have agreed to put them on paid leave in the circumstances, which will rarely be the case.

More information regarding child care services and refusals to work can be found at: http://wardlegal.ca/31596034289338

Thanks for reading.

Credit: 

Rhonda B. Levy and Barry Kretzky, Littler LLP (via Lexology.com on August 24, 2020)

 

read more

NEW INCOME SUPPORT BENEFITS & UPDATES RE: EMPLOYMENT INSURANCE (EI) AND CANADA EMERGENCY RESPONSE BENEFIT (CERB)

The Government of Canada has and continues to provide support to Canadians who face ongoing hardships from the COVID-19 pandemic. A few recent updates for those who have had their employment impacted by the pandemic, is a simplified Employment Insurance (EI) program, as well as new income support benefits to take effect as of September 27, 2020. To assist in the transition, the Canada Emergency Response Benefit (CERB) has been extended by 4 weeks, allowing for a maximum of up to 28 weeks of benefits.

 

The purpose of this program was designed to assist those who remain unable to work due to the COVID-19 pandemic, provided they meet eligibility requirements, and to introduce new temporary and taxable recovery benefits to provide further support.

 

The eligibility requirements for the program consist of the individual having worked 120 hours in the last year to qualify for a minimum EI benefit rate of $400/week, for at least 26 weeks of regular benefits.

 

If eligibility requirements are not met for EI, there are three new income support benefits available as of September 27, 2020 for a period of one year:

 

1. Canada Recovery Benefit: For individuals (ie. self-employed) who require support as they remain unable to return to work due to COVID-19, or who have had their hours reduced since the pandemic and have not voluntarily quit their job. Employment and/or self-employment income needs to be at least $5,000 or more in either 2019 or in 2020. This benefit provides for $400/week for up to 26 weeks. Note, that if income is more than $38,000 (excluding the Canada Recovery Benefit), the claimant would need to repay some, or all, of the benefit through their income tax return.   

 

2. Canada Recovery Sickness Benefit: For individuals who are unable to work because they are sick and/or must self-isolate due to COVID-19. This benefit provides for $500/week for up to 2 weeks in a one-year timeframe. Claimants need to be employed or self-employed at the time of the application with income to be at least $5,000 or more in either 2019 or in 2020. Claimants must have missed a minimum of 60% of their scheduled work, in the week that they claim the benefit. Note, a medical certificate is not required to qualify, and the benefit is taxable.  

 

3. Canada Recovery Caregiving Benefit: For individuals who are providing care to children who are under 12 years old, to support other dependents or providing care to a family member with a disability. The benefit provides for $500/week for up to 26 weeks per household. Individuals need to be employed or self-employed on the day immediately preceding the period for which the application is made, with income to be at least $5,000 or more in either 2019 or in 2020. Claimants must have been unable to work for at least 60% of their normal work week. Note, the claimant cannot be receiving paid leave from an employer in the same week, and cannot be receiving CERB, EI Emergency Response Benefit, Canada Recovery Benefit, Canada Recovery Sickness Benefit, short-term disability benefits, workers compensation benefits or any EI Benefits in the same week. This benefit is taxable. 

 

The Canada Revenue Agency will provide further information as to how and when Canadians can apply at the following link:  www.canada.ca/coronavirus.

read more

CKL EMPLOYERS - SEP 4 IS YOUR UPCOMING DEADLINE IF YOU HAVE EMPLOYEES REMAINING AT REDUCED HOURS OR AT HOME - YOUR OPTIONS - WHAT YOU NEED TO KNOW TODAY.

CKL employers may have an important deadline upcoming - September 4, 2020, to the extent they continue to have employees not actively working (i.e., temporarily laid off and deemed to be on Ontario's infectious disease leave of absence. 

On July 24, 2020, Ontario’s new Bill 195, Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, became law. In accordance with Bill 195, Ontario’s Emergency Declaration has ended (subject to the provincial government’s ongoing authority to extend certain existing emergency orders). One of the implications of ending the Declared Emergency is to trigger the winding down of a recent exemption to the temporary layoff provisions under the Employment Standards Act, 2000 (the “ESA”).

Pursuant to Ontario Regulation 228 / 20 (“Regulation 228”), any non-union employee whose wages were temporarily reduced or whose hours of work were temporarily reduced or eliminated during the COVID-19 Period due to the pandemic was deemed to be on infectious disease emergency leave (“IDE Leave”), rather than on layoff. Regulation 228 effectively rendered the temporary layoff provisions in the ESA inapplicable during the COVID-19 Period, except where the layoff was due to a permanent cessation of all of the employer’s business, and provided protection from constructive dismissal claims under the ESA during the COVID-19 Period. In doing so, Regulation 228 provided considerable relief to employers and offered flexibility in navigating COVID-19 issues.

Regulation 228 defined the COVID-19 Period as commencing on March 1, 2020 and ending six weeks after the Emergency Declaration has ended: namely, September 4, 2020.  After September 4, such employees will no longer be deemed to be on IDE Leave. Because of this, an employer will now have to decide whether to:

  • recall employees and decide whether or not to access the Canada Emergency Wage Subsidy program (CEWS)

  • place employees on temporary layoff under the ESA (although the potential issue of constructive dismissal might remain at common law absent a contractual provision allowing for layoff)

  • recognize that an employee is eligible (if qualifying conditions are met) for ongoing IDE Leave (or any other applicable ESA leave or a leave under company policy or an employment contract).

Because IDE Leave is a statutorily protected leave under the ESA, an employee is entitled to reinstatement to the same position upon completion of the leave or to a comparable position (assuming that either position is available).

If an employer chooses temporary layoff under the ESA, then the clock will start ticking on deemed termination of employment. Under the ESA, the maximum length of a statutory temporary layoff is limited to a number of weeks (either 13 weeks in any period of 20 consecutive weeks, or up to 35 weeks in any period of 52 consecutive weeks if certain conditions are met (e.g., continuation of coverage under a benefit plan)). The employee’s employment will be deemed to be terminated if either limit is exceeded, triggering applicable notice and severance pay obligations. For any employee who was laid off prior to March 1, 2020, that period of layoff prior to March 1 will count in the calculation of time under the 35-week approach.

Once an employer decides how to manage its workforce in light of Bill 195, it needs to consider appropriate communications with employees.

What Does It Really Mean? 

In light of the pending September 4 deadline, employers will have to consider carefully their available options with respect to employees who are not currently working. Employers are encouraged to seek legal guidance with respect to their specific circumstances regarding this transition period, especially if unable to resume full and regular operations after September 4 via a recall of employees.

Credit

Sari Springer, Barry Kuretzky, George Vassos and Monty Verlint, via Lexology on August 21, 2020

read more

EMERGENCY ORDERS EXTENDED TO SEP. 22 - MOST REMAIN IN FULL EFFECT. WHAT YOU NEED TO KNOW TODAY ABOUT ONTARIO'S ONGOING EMERGENCY ORDERS.

The Ontario government is extending orders currently in force under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (ROA).

The extensions provide the government with the necessary flexibility to address the ongoing risks and effects of the COVID-19 outbreak and ensure important measures remain in place to protect vulnerable populations, such as seniors, people with developmental disabilities and those with mental health and addiction issues.

All orders under the ROA have been extended to September 22, 2020, with the following exceptions:

On July 21, 2020, the Ontario Legislature passed the ROA to ensure important measures remained in place to address the sustained threat of COVID-19 once the provincial Declaration of Emergency came to an end. Orders, made under the Emergency Management and Civil Protection Act (EMCPA) that were in effect when the ROA came into force, were continued under the new act for an initial 30 days. Under the ROA, orders can be extended for up to 30 days at a time.

The government will continue to review all orders and will report on order extensions to the newly created Select Committee on Emergency Management Oversight.

The following orders under the ROA have been extended until September 22, 2020:

Quick Facts

  • The provincial Declaration of Emergency was terminated on July 24, 2020 when the ROA came into force.

  • The ROA allows certain orders to be amended, subject to criteria, and does not allow new orders to be created.

  • The ROA requires the Premier to table a report on any amendments or extensions of any orders within 120 days after the first anniversary of the act coming into force.

  • The power to extend or amend continued orders is limited to one year; these powers can only be extended by the legislature. If powers are extended beyond one year, an additional report is required for the extension period.

  • The Select Committee on Emergency Management Oversight will meet for the first time on August 24, 2020 to hear the rationale for decisions to extend orders.

  • A full list of orders can be found on the e-Laws website under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (ROA) and at Ontario.ca/alert.

  • As of August 10, 2020, all Public Health Units in the Province are in Stage 3 of reopening.

Additional Resources

read more

WORKING ON THAT COVID 15 (POUNDS)? THE NEW RULES FOR WORKING OUT IN A GYM OR SPORTS/RECREATIONAL FACILITY. WHAT YOU NEED TO KNOW TODAY FOR WORKING OUT AND GETTING BACK INTO SHAPE IN A GYM.

Need to start working on that COVID 15 (pounds)?

Here are the new rules for when you go to your gym or fitness centre, during this Phase 3 of re-opening. 

Some restrictions are eased, but others continue.

What you need to know today about working out at your gym or other fitness facility.

Precautions still required

The new changes still require:

  • two metres distance be maintained between those in the gym;

  • any equipment that is provided for the use by users of the facility must be cleaned and disinfected between each use;

  • Activities where fixed structures cannot be cleaned and disinfected between each users cannot take place;

  • All facilities must follow applicable worker health and safety requirements as outlined in the Occupational Health and Safety Act in addition to any applicable municipal bylaws.

Best practices

A new guide has been launched by the province for sports and recreational fitness facilities. It recommends, amongst other precautions:

  • Proper signage to remind the users of proper hand hygiene and health etiquette;

  • Providing alcohol-based hand rub;

  • Removing all equipment that cannot easily be cleaned or disinfected;

  • Encouraging patrons to bring their own equipment, and limiting the sharing of equipment;

  • Increasing cleaning frequency;

  • Cleaning equipment between each users;

  • Decreasing touch points (such as keys, lockers, etc…)

  • Ensuring physical distancing; Consider putting signs and cues up or on the floor, and consider increasing distance for high intensity exercise with rapid inhalation and deep exhalation (such as … AGM and board meetings?);

  • Implementing staggered schedules, considering online booking, blocking time to clean the facilities;

  • Improving ventilation systems and avoiding air recirculation.

Screen your users!

Screening your users is still key:

  • Implement active screening of your users;

  • Consider using Ontario’s Covid Self-assessment tool;

  • Consider online screening prior to the user’s arrival on site;

  • Those who present symptoms or risks should not be allowed to use the gym;

  • Keep record of all individuals (including names, contact information, dates and times) who enter your facility.

Consider implementing an online screening and booking process for your users ahead of their arrival and keep track of your users!

Corporations can continue to apply their own protocols

With these changes, the Ontario government also reminds everyone that:

businesses, not-for-profits, and municipalities may need or choose to take more time before implementing this change in capacity limits; and  

any facility may also adopt their own protocols that are more restrictive than the guidance.

 

read more

CKL EMPLOYERS - SEP. 4 IS NIGH - WILL YOU SUFFER THE SLINGS AND ARROWS OF OUTRAGEOUS FORTUNE? THE LOOMING CHOICE OF LAY-OFF OR RECALL. WHAT YOU NEED TO KNOW.

In Ontario, temporary lay offs generally may be up to thirteen weeks, under the Employment Standards Act, 2000 (Ontario) (“ESA”). If the person is not recalled, the employer faces risk that the employee would be deemed terminated under the ESA, even if both the employer and the employee wish to continue the employment relationship.

During COVID’s special circumstances, the Government of Ontario issued Ontario Regulation 228/20 – Infectious Disease Emergency Leave (the “Regulation”), which provides that any non-unionized employee who:

  1. had their hours of work temporarily reduced or eliminated by their employer for reasons related to COVID-19, and

  2. is not performing the duties of his or her position as a result,

is deemed to be on Infectious Disease Emergency Leave during the “COVID-19 Period”, which is retroactive to March 1, 2020, and ends six weeks following the end of Ontario’s provincial declaration of emergency.

Ontario’s provincial declaration of emergency ended on July 24, 2020. This means that the “COVID-19 Period” is set to end on September 4, 2020.

So, as of September, absent further government intervention, many employees will return full circle - facing the risk of deemed terminations under the ESA. They need to decide whether to place employees on temporary layoff or to reduce hours of work or pay. This is especially so for those employers who are unable to bring back employees at the end of the COVID-19 Period..

What is a Temporary Layoff?

  • generally, a layoff is a period when an employer ceases to provide work and (in most cases) compensation to an employee temporarily

  • where permitted, the parties treat the employment relationship as ongoing, despite this interruption of work and/or compensation, with the understanding that work and compensation may resume in the future

  • in Ontario, a layoff week is a week where the employee earns less than one half of the amount that they would earn at their regular rate in a regular week or their average earnings for the period of 12 consecutive weeks prior to the layoff period

  • the Canada Labour Code, which applies to federally regulated employers, allows a temporary layoff of 3 months or less, subject to certain exceptions listed below

How Long can a Temporary Layoff Last?

  • temporary layoffs are just that – temporary - if they exceed the statutory limit, then an employer will generally be deemed to have terminated an employee’s employment unless an exception applies. Key statutory time limits are as follows:

    • temporary layoffs cannot exceed: (a) 13 weeks in any period of 20 consecutive weeks; or (b) more than 13 weeks in any period of 20 consecutive weeks but less than 35 weeks in any period of 52 weeks where:

      • the employee continues to receive substantial payments from the employer, or

      • the employer continues to make payments for benefits or a legitimate retirement or pension plan, or

      • the employee receives supplementary unemployment benefits, or

      • the employee would be entitled to supplementary unemployment benefits but isn’t receiving them because they are employed elsewhere, or

      • the employer recalls the employee within a time frame approved by the Director of Employment Standards or as set out in an agreement with an employee not represented by a trade union, or where the employee is represented, as set out in an agreement with the trade union.

    • federally under the Canada Labour Code, a temporary layoff is:

      • a layoff of 3 months or less, or

      • a period of more than 3 months and:

      • the employer notifies its employees before the layoff that they will be recalled on a fixed date, which is not longer than 6 months, and the employees are recalled on that date;

      • the employee continues to receive payments during the term of the layoff from their employer in an amount agreed on by the employee and their employer; 

      • the employer continues to make payments for the benefit of the employee to a pension plan that is registered under the Pension Benefits Standards Act, 1985, or under a group or employee insurance plan; 

      • the employee receives supplementary unemployment benefits; or 

      • the employee would be entitled to supplementary unemployment benefits but is disqualified from receiving them pursuant to the Employment Insurance Act.under the Canada Labour Code, any periods of re-employment that are less than two weeks in duration are not included in calculating the length of the layoff. Layoffs under a collective agreement where the employee retains a right of recall are also permissible layoff

Is Advance Notice Required? 

  • there are no advance statutory notice requirements before an employee can be placed on a temporary layoff in Ontario  

  • while notice of a temporary layoff is not required under the Canada Labour Code, a temporary layoff may be more than 3 months if the employer notifies its employees before the layoff that they will be recalled on a fixed date, which is not longer than 6 months, and the employees are recalled on that date 

Do Employers Pay Employees while on Temporary Layoff?

  • subject to an employment agreement, policy or collective agreement that says otherwise, layoff periods are generally unpaid. However, employees may qualify for Employment Insurance under new eligibility criteria implemented by the Federal Government for COVID-19 situations

  • employees may also, on a voluntary basis, use their vacation time during a period of a temporary layoff to continue to receive pay

Are Employers Required to Continue Benefit or Pension Contributions During a Layoff?

  • this depends on the terms of employment, including applicable employment contracts, collective agreements, employer policies and third-party plans. In most cases though, absent contractual terms to the contrary, employers are not required by statute to continue benefits or pension plan contributions during temporary layoffs

  • the allotted time for a temporary layoff may be extended if the employer makes benefits and pension contributions to the laid-off employees

  • the employee must agree to these payments in lieu of a firm limit on the length of the layoff

  • where an employment agreement, workplace policy or collective agreement provides for a greater right to benefit or pension continuance, those contractual terms will prevail.

Do Obligations Change Depending on How Many Employees are Temporarily Laid Off?

  • where an employer lays off multiple employees in a short period of time, the employer should be aware of applicable statutory group/mass termination obligations

  • whether these obligations are triggered will be a jurisdiction-specific inquiry. In Ontario there are no mass or group termination considerations for temporary layoffs, however, should the layoffs extend beyond the allotted time mass termination entitlements may apply.

  • these obligations may include providing written notice of the layoffs to an applicable government authority and to the employees in accordance with applicable employment standards legislation. Further obligations may ensue if the layoffs are considered terminations.

What Else Should Employers Know?

  • related layoffs should be temporary. If an employee is laid off for a period longer than the time permitted by statute for the temporary layoff, the employer may be considered to have terminated the employee’s employment and termination obligations, including full severance obligations, will apply

  • employers are encouraged to provide timely, transparent and ongoing communications to their employees in respect of any temporary layoffs, including with respect to any anticipated recall dates or extensions to the layoff period. To that end, employers will want to ensure that they have up to date contact information for each affected employee so that communications are effective

  • a Record of Employment must be issued for each of the employees that are on a temporary layoff

  • a layoff, even if intended to be temporary, may result in the risk of constructive dismissal claims or grievances where temporary layoffs are not otherwise expressly permitted by contract or collective agreement.

 

read more

ANSWERS TO YOUR TOP 20 QUESTIONS ABOUT POWERS OF ATTORNEY - POAs EXPLAINED FOR NON-LAWYERS.

1.What is a Power of Attorney?

A Power of Attorney is a legal document that gives someone else the right to make decisions on your behalf.

2. Are there different kinds of Power of Attorney?

Yes. In Ontario there are three kinds of Power of Attorney:

 A Continuing Power of Attorney for Property (CPOA) covers your financial affairs and allows the person you name to make decisions for you even if you become mentally incapable.

A non-continuing Power of Attorney for Property covers your financial affairs but can’t be used if you become mentally incapable. You might give this Power of Attorney, for example, if you need someone to look after your financial transactions while you’re away from home for an extended period of time.

A Power of Attorney for Personal Care (POAPC) covers your personal decisions, such as housing and health care.

3. Does the law require everyone to have a Power of Attorney?

No. Making a Power of Attorney is voluntary. No one can be forced to make one.

4. What does the term “attorney” mean?

The term “attorney” refers to the person or persons you have chosen to act on your behalf. The person does not have to be a lawyer. 3

5. What does the term “mentally incapable” mean?

It means different things for different types of decisions and actions. For example, the level of mental capacity a person needs in order to make a valid power of attorney is different from the capacity needed to make personal care or financial decisions. The definitions are provided below under the topic headings.

6. Can I express my wishes in advance?

Ontario laws recognize that your known wishes expressed while mentally capable about your future care choices, will be binding on your attorney or other substitute decision-makers, unless they are impossible to follow. Ontario law does not use the term “living will’. Sometimes people use the term “advance directive” to refer to a written statement of wishes about future care.

7. Is an “advance directive” the same thing as a “Power of Attorney”?

No. A Power of Attorney is a legal document in which you name a specific person to make decisions on your behalf. You can, however, write your treatment wishes (an “advance directive”) as part of your Power of Attorney for Personal Care so that you can be sure your attorney is aware of them. An “advance directive” just addresses your treatment and personal care wishes and does not need to name anyone or be written in any specific way.

8. Is a Power of Attorney the same thing as a “Last Will and Testament”?

No. Your Last Will and Testament covers the distribution of your property after you die and only takes effect upon your death. A Power of Attorney only applies while you are alive and ceases to be effective upon your death.

9. Do I have to register my Power of Attorney with the government?

No. There is no requirement that these documents be registered. The government does not keep a registry. It makes sense, however, to make sure that the people in your life who need to know about these documents – especially your attorney – have a copy or know where to get one if needed.

10. Is a Power of Attorney effective outside of Ontario?

It depends on the law of the particular place where you want to use the Power of Attorney. If you are going to move, or be out of the province for some time, you may want to check with a local lawyer to see if you need to make new documents. 4

11. If I don’t make a Power of Attorney, will the government automatically step in if I can’t manage my own affairs?

No. In these circumstances a family member has the right to make your health care decisions or apply to become your “guardian” of property. Alternatively, someone else – such as a close friend - could apply to make decisions for you in these matters. The government, through the Office of the Public Guardian and Trustee (OPGT), acts only in situations where it is legally required and where no other suitable person is available, able and willing. For more information about applications for guardianship please see the brochure entitled “Becoming a Guardian of Property”.

12. Do I have to use a lawyer to make my Powers of Attorney?

The law does not require you to use a lawyer’s services. However, you may wish to consider hiring a lawyer, especially if your affairs are complicated.

13. Where can I get Power of Attorney forms?

Your lawyer can draft Powers of Attorney for you. Alternatively, some bookstores sell forms and there are also some forms on the Internet. The OPGT provides forms for both Power of Attorney for Property and Personal care. You may request these by calling Service Ontario at 416-326-1234 or toll free at 1-800-267-8097. Forms can also be requested from the OPGT by calling 416-314-2800 or toll-free at 1-800-366-0335 or TTY: 416-314-2687. Access them on-line at http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/poa.pdf Obtaining legal advice in creating these documents is something you should seriously consider. Note: The Ontario Government’s 1994 Power of Attorney Kit is still valid for use today.

14. Does the government also provide a “Will Kit” or similar forms that I can use to make my Last Will and Testament?

No. It is difficult to make one form that would adequately cover the many diverse situations that people may want to reflect in their Wills and provide all the information that people need to plan properly. We recommend that you hire a lawyer to assist you in making your Will.

15. Is my Power of Attorney valid?

f the document is properly completed, signed and witnessed, and you had the legal capacity to give the POA there are no further steps that need to be taken in order for it to be legally binding. Please note the POA must be witnessed by two individuals who are eligible to serve as a witness. Some people, for example, your spouse and children, are not allowed to serve as a witness to you signing the POA. Please see the OPGT’s POA Kit for complete instructions. You may also wish to obtain legal advice. Neither the Attorney General’s office nor the Office of the Public Guardian and Trustee keep a record of Power of Attorney documents, so there is no need to submit one in order for it to be legally binding. It is also not necessary to have a lawyer review the documents, although this may be helpful to ensure they are executed properly. While not required under the Substitute Decisions Act, 1992, a person being asked to recognize a Power of Attorney may require a notarized copy of, or the opportunity to see the original Power of Attorney, before dealing with an attorney in place of the grantor. This requirement provides additional assurance that the attorney has authority. Requiring the attorney to produce the original for inspection or provide a notarized copy helps establish that the original document is still in existence and is in the attorney’s possession. As well, if a notarized copy is produced, it reduces the risk of potential fraud as the notary is required to compare the original Power of Attorney to the copy prior to notarizing the copy.

16. If a witness to a Power of Attorney dies, does the Power of Attorney become invalid?

No. The subsequent death of a witness does not affect the validity of the Power of Attorney.

17. If there is more than one Power of Attorney, which one is valid?

Only the most recent Power of Attorney is valid unless you state, in that document, that you intend to have more than one Power of Attorney.

18. I am an attorney named in a Power of Attorney. What if someone refuses to accept the Power of Attorney?

It may have been that, despite the grantor’s best intentions, the document was not executed properly. For instance, although it is signed and witnessed, it may be that one of the witness signatures is not valid owing to the witness’s relationship to the grantor or because the witness is also the appointed attorney. It is also possible that the grantor lacked the required mental capacity to make a POA. 6 If the POA is executed properly, there may be some policy reason that an institution (e.g. bank) in Ontario has not accepted it. In order to protect from fraud, many institutions establish policies around the acceptance of POAs. You should discuss this with them. You may need to seek legal advice if the POA appears to be validly made and the institution still refuses to honour it. Please Note: Powers of Attorney are governed provincially, rather than federally, so each province has its own requirements. If you are trying to use a POA from Ontario, in another province, you may run into difficulty. However, it may be possible to have the POA validated by another province; you should seek legal advice with respect to this issue.

19. Can a Power of Attorney be challenged?

Yes, but only a court has the final say.

20. Will the OPGT agree to be appointed in a Power of Attorney?

The OPGT rarely consents to act under a Power of Attorney. The OPGT’s mandate is to make decisions as guardian for mentally incapable adults who have no one else available, willing and suitable to make decisions on their behalf.

Credit: attorneygeneral.jus.gov.on.ca

 

read more

CKL FARMERS - MORE MONEY FOR LIVESTOCK WELL BEING STUDY AND NEW PROGRAMS. TODAY'S UPDATE.....

The Ontario Government is investing $2.35 million in advanced animal research related to livestock health and well-being while also focusing on increasing productivity and competitiveness in the livestock sector.

The findings will provide farmers with the latest knowledge and on-farm solutions for safely managing livestock so they can continue to be world leaders in the agriculture sector.

This research is funded through the Ontario Agri-Food Innovation Alliance, a collaboration between the Ontario government and the University of Guelph to support growth and innovation in the province's agri-food and rural sectors.

Through the Ontario Agri-Food Innovation Alliance, the Province is funding livestock research projects to investigate innovative methods, practices and products that will help the sector better understand and support livestock health and welfare, including:

  • Identifying genetic markers to reduce disease and infections in sheep and cows

  • Improving access to veterinary services and support in rural and remote areas

  • Developing a surveillance program for milk tanks on dairy farms

  • Examining newborn milk in the development of neonatal dairy calves

  • Evaluating novel methods to prevent bovine respiratory disease

  • Identifying disease-causing pathogens in sheep and goats

  • Validating the use of probiotics to support the health of multiple livestock species

  • Investigating alternative control measures for E. coli diarrhea in pigs

All projects are designed to ensure Ontario's agri-food sector can quickly benefit from the new knowledge, technologies and solutions developed through provincially funded research.

Quick Facts

  • The $2.35 million earmarked for new livestock health, welfare and productivity projects is part of the province’s Ontario Agri-Food Innovation Alliance annual investment of $8.65 million, which supports research at the University of Guelph. The Alliance funds research in areas of environmental sustainability, animal and plant health and production, as well as agri-food and bio-product development.

  • Ontario’s livestock sector (beef, hog, sheep, dairy, poultry and egg) contributes approximately $16.4 billion to the GDP and supports more than 323,000 direct jobs.

Additional Resources

read more

TAKE THE 30 X 30 CHALLENGE IN AUGUST - 30 MIN A DAY OUTSIDE IN NATURE FOR 30 DAYS - SPONSORED BY ONTARIO PARKS

If you are looking for great reason to get outside, you can take up the annual Ontario Parks 30x30 Challenge.

It is part of our government's Healthy Parks Healthy People initiative and runs for the month of August.

To meet the 30x30 Challenge, participants must spend 30 minutes outside in nature each day for 30 days.

The 30x30 challenge can be a fun way to kickstart healthy new habits or renew old ones and take advantage of the life-long benefits. Spending time in nature can have a profound impact on our health and well-being, improve our overall mood, boost our immune system and reduce stress. There are countless ways to participate, from going on a bike ride, taking a long walk, or enjoying a provincial park or another greenspace near you.

Although we are encouraging people to be more active, it's important to remember we must continue to be responsible and follow public health advice, including practicing physical distancing whether inside or out, wearing a face covering when physical distancing is a challenge or where it is required, washing your hands frequently and avoiding large gatherings."

Additional Resources

  • Use the Ontario Parks locator tool to find a provincial park near you.

  • More ideas on what to do for the 30x30 Challenge can be found on the Ontario Parks Blog and YouTube channel.

  • As part of Ontario’s Healthy Parks Healthy People strategy, Ontario recently consulted people and organizations across the province to help us develop more effective programs, policies and partnerships to improve access to the health benefits of provincial parks and green spaces. Read a summary of what we heard.

read more

CKL BUSINESSES AND ORGS - COMMERCIAL RENT ASSISTANCE EXTENDED TO AUGUST, 2020 - MUST RE-APPLY BY SEP. 14. WHAT YOU NEED TO KNOW TODAY......

On July 31, the Ontario government, in partnership with the federal government, extended the Canada Emergency Commercial Rent Assistance (CECRA) for small businesses by one month to help eligible small business pay rent for August.

To find out how much rent support you may be eligible for, visit Ontario.ca/rentassistance.

To learn more and apply for the CECRA for small businesses, visit the Canada Mortgage and Housing Corporation's (CMHC) application portal.

More Facts About the CECRA

  • The province committed $241 million to the program, which would provide more than $900 million in support for small businesses across Ontario during this difficult time.

  • The CECRA for small businesses is administered by the CMHC. Support covers April, May, June, July and August 2020. Existing applicants need to reapply for the month of August and have until September 14, 2020 to do so. New applicants have the choice of applying for the three-month initial period, four months or five months, but need to do so by the original date of August 31, 2020.

  • The CECRA for small businesses has been developed to share the cost of rent between small business tenants, landlords and the governments of Ontario and Canada. Small business landlords would be asked to forgive at least 25 per cent of the tenant's total rent, tenants would be asked to pay up to 25 per cent of rent and the provincial and federal government would share the cost of the remaining 50 per cent.

  • Partnering with the federal government to deliver rent assistance builds on the government’s actions to support small businesses during COVID-19. As part of Ontario’s Action Plan: Responding to COVID-19, the first phase of the government’s response, the province has implemented $10 billion in cash flow supports to help support jobs and businesses through tax and other deferrals.

Additional Resources

read more

YOU CAN DOWNLOAD THE NEW COVID APP AS OF TODAY - HOW TO DO IT - TIPS ON USE - THE MORE WHO DOWNLOAD, THE BETTER IT WORKS. WHAT YOU NEED TO KNOW TODAY.........

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

This app, which is available beginning today, lets users know if they may have been exposed to the virus.

It is free, easy and safe to use.

The more people who download the app, the more effective it will be in stopping the spread of COVID-19.

The COVID Alert app uses Bluetooth technology to detect when users are near each other. If a user tests positive for COVID-19, they can choose to let other users know without sharing any personal information. Ontarians who receive an exposure alert can then get tested and take action to help keep themselves, their families, and their friends from spreading COVID-19 throughout the community.

The app does not collect personal information or health data, and does not know or track the location, name, address, or contacts of any user.

COVID Alert is a key tool to strengthen Ontario's comprehensive case and contact management strategy, Protecting Ontarians through Enhanced Case and Contact Management. The app supports the efforts of public health units, allowing the province to quickly test, trace and isolate cases of COVID-19 to stop the spread of the virus and prepare for any potential outbreaks ― without sharing any personal information.

If an app user receives a message from COVID Alert that they may have been exposed to the virus, they should follow the public health advice given on the app and get tested. To notify other people if an app user has tested positive for COVID-19, they can enter their one-time key from Ontario's test results website (Ontario.ca/covidresults) into the app. A message will then be sent to other app users who have been within two metres of them for at least 15 minutes within the past 14 days, without sending any information that identifies the user, or the time and place of exposure.

To stay safe as more of the province reopens, Ontarians should continue to follow public health guidelines including physical distancing with people not in their social circle, wearing a face covering if physical distancing is a challenge, washing hands thoroughly and frequently, and if anyone thinks they have COVID-19 or have been in contact with someone who has COVID-19, get tested.

Quick Facts

  • COVID Alert is available for free use and download from the Apple and Google Play app stores.

  • All aspects of COVID Alert are completely voluntary. Ontarians can choose whether to download the app, whether to use the app after downloading it, and whether to notify others if they test positive for COVID-19.

  • COVID Alert does not collect any personal information, health information, or location data. It uses Bluetooth technology to send out encrypted codes to other nearby app users and was built using the Apple/Google framework for exposure notification to ensure that it leverages global best practices to protect privacy.

  • COVID Alert is a Digital First Smart Initiative, one of many cross-government projects that focus on better outcomes and improving the customer experience.

  • The Government of Canada is also working with the other provinces and territories to get their jurisdictions on board with the app in the coming weeks and months.

  • In addition to his responsibilities as President of the Treasury Board, Minister Peter Bethlenfalvy is now overseeing Ontario’s efforts to lead digital and data transformation for the people of Ontario, including oversight of the Ontario Digital Service.

Additional Resources

read more

CKL COMMERCIAL LANDLORDS - DISTRAINT OR TERMINATE, BUT NOT BOTH - IT'S ILLEGAL

Many commercial landlords do not realize – if you are owned rent by your tenant, you must choose between locking the doors/distraining and termination of the lease. You cannot do both.

You must choose: either distraint or terminate and sue for unpaid rent.

In this case, the plaintiff tenant and defendant WM and Buckingham (landlord) entered into lease for commercial premises.

The tenant intended to completely renovate the unit and open a Mediterranean-style restaurant.

The tenant also paid landlord $16,950 for purchase of its restaurant business, equipment, and chattels left in leased premises. Upon taking possession, the tenant discovered numerous pieces of kitchen equipment had to be replaced.

The tenant did not pay rent as a result. The tenant was locked out for arrears of rent after several months. The landlord distrained the tenant's chattels, changed the locks, and terminated the lease.

The tenant’s action for damages for illegal distraint and improper termination of the commercial lease was allowed in part while landlord counterclaimed for arrears of rent.

The trial judge found the lease termination was proper but that the landlord had illegally distrained the tenant’s chattels.

The trial judge awarded the plaintiff $58,190.74 in damages for conversion and $10,000 in punitive damages, which were offset by damages of $1,294 for unpaid rent awarded to the defendant on its counterclaim.

In addition, trial judge found that WM was jointly and severally liable for these damages with Buckingham.

The landlord appealed. The appeal was allowed in part. The trial judge did not err in holding illegal distraint. The landlord had to choose between mutually exclusive remedies of termination and distress. Instead of making the choice, it attempted to do both and, therefore, distraint was illegal.

Pita Royale Inc. (Aroma Taste of the Middle East) v. Buckingham Properties Inc. (2019), 2019 CarswellOnt 8106, 2019 ONCA 439, C.W. Hourigan J.A., M.L. Benotto J.A., and Grant Huscroft J.A. (Ont. C.A.); varied (2017), 2017 CarswellOnt 20043, 2017 ONSC 5976, Carole J. Brown J. (Ont. S.C.J.).

read more

CKL TENANTS BEWARE! LANDLORDS CAN NOW GET EVICTION ORDERS WITHOUT PRIOR NOTICE TO YOU. WHAT YOU NEED TO KNOW TODAY.............

New Ontario legislation now allows ex parte (i.e., without any notice) eviction orders, allowing landlords to obtain an eviction order without appearing before the Landlord and Tenant Board (the “LTB”).

Firstly, with Bill 184, the Protecting Tenants and Strengthening Community Housing Act, when a tenant is behind on rent, they can now enter into an enforceable repayment agreement with their landlord without oversight from an LTB adjudicator.

If the tenant fails to meet the repayment agreement’s terms, they can be subject to an ex parte eviction, or eviction without a hearing.

This is entirely new, as previously no eviction could be ordered by the LTB without the tenant being properly notified in advance.  

How does a landlord now do this?

The landlord must initially serve the tenant a Form N4 Notice to End a Tenancy Early for Non-payment of Rent, file a Form L1 Application to Evict a Tenant for Non-payment of Rent with the LTB, fill out another LTB form, which becomes the repayment agreement, following which both parties wait to receive the consent order from the board on that agreement.

However, if the tenant breaches the agreement, the landlord can then file an L4 application for eviction and does not have to serve notice to the tenant, nor have a hearing with the LTB.

The tenant has 10 days to file a set aside motion, to appear before the LTB to address the breach.

The tenant can also file a request to review the eviction order until 30 days post-eviction order.

Effectively, the new legislation shifts the onus to the tenant to prove why they did not uphold the agreement, while at a typical non-payment of rent hearing, the landlord has the onus to prove rent was not paid, to which the LTB applies an “equity reasoning”, determining whether there are circumstances that may justify delaying or refusing the eviction.

Some say that this new legislation further tips the scales of the power imbalance in favour of the landlord, namely by removing an opportunity for tenants to access much-needed assistance and protection at the LTD.

read more