On March 20, 2020, the Ontario government made an order under section 7.1 of the Emergency Management and Civil Protection Act to suspend limitation periods and procedural time periods. The suspension is retroactive to March 16, 2020.  

The suspension is a response to the recent declaration of emergency in Ontario due to the Covid-19 outbreak, which caused the courts and administrative tribunals to close their doors. All hearings will be rescheduled and timelines for all types of proceedings are suspended for the duration of the emergency, subject to the discretion of the court, tribunal or other decision-makers responsible for the proceeding. 

What Does This Mean for our Case?

What does this mean if you’re currently involved in a proceeding? It means that if your opposing party fails to follow the timelines, there will be no consequence. This will inevitably cause significant delays in many cases. If both parties are willing to move the matter forward, courts and tribunals are making efforts to hear matters virtually, over the phone or in writing. 

Parties may decide to use the recent order to their advantage by further stalling matters – in other cases, the financial backlash from the pandemic may incite parties to settle more quickly and put an end to their proceeding. 

While we know litigation can be a most effective tool in certain situations, we anticipate the current court and tribunal status may motivate parties to figure out a resolution outside the formal process. We have been approached by various mediators experienced with online dispute resolution and hope the current environment will finally push such innovative approaches forward as a legitimate option, arming parties with tech and convenience to solve their dispute. 

Status of Courts and Workplace Tribunals

Ontario Superior Court of Justice 

  • All regular operations are suspended until further notice.
  • All civil matters scheduled to be heard after March 17, 2020, are adjourned, including telephone and videoconference appearances, unless the presiding judicial officer directs otherwise.
  • Urgent matters will be heard during the suspension, which includes matters relating to public health and safety and Covid-19, as well as urgent civil motions and applications and outstanding warrants.

Small Claims Court

  • All matters are suspended until further notice, including trials and settlement conferences, and including telephone and video conference hearings.
  • Limited urgent matters will be heard, including matters relating to outstanding issued warrants.

Human Rights Tribunal of Ontario (“HRTO”)

  • All in-person hearings have been postponed, to be rescheduled to a later date.
  • The HRTO will consider alternative hearing options (such as written and telephone hearings) where feasible, in order to try and minimize disruption to hearings.

Ontario Labour Relations Board (“OLRB”)

  • All in-person mediations and hearings scheduled between now and  April 14, 2020, are cancelled. The OLRB will continue to assess the need for the cancellation of hearings scheduled after April 13th.
  • Mediations will be held by teleconference or by email
  • Previously scheduled hearings may be held over the phone or in writing.

Canada Industrial Relations Board (“CIRB”)

  • All in-person hearings and meetings scheduled between now and May 31, 2020, will not be held as planned. 
  • The CIRB will contact parties on a case-by-case basis about alternative methods to conduct hearings.

Ontario Court of Appeal

  • All scheduled appeals are cancelled until April 3, 2020. 
  • Urgent appeals will be heard based on written materials or remotely.
  • Non-urgent scheduled appeals until April 3, 2020, will be heard in writing.

If you have any questions about these recent changes, get in touch to book a consult.

FAQs for Employers – Frequently asked questions by employers needing more information on the impact, rules and best practices for addressing the global coronavirus outbreak. (Last Updated March 23, 2020).

Further free resources can be found here.

Should you need legal advice on how to manage your workplace during the COVID-19 outbreak, please get in touch.

On Thursday, March 19, 2020, the Ontario Legislature passed Bill 186, Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 (“the Bill”). 

The Bill amends the Ontario Employment Standards Act (ESA) adding new job protection for employees affected by COVID-19. This job protection is retroactive to January 25, 2020. 

What is the Leave and Do I Still Have to Pay My Employees?

The new leave allows eligible employees to not come to work, and keep their job, in the circumstances set out below. 

Employees who are not at work because they are using this leave provision do not have to be paid. In many cases, they will be entitled to EI. Employees will remain entitled to their benefits while off under this leave.  

If an employer terminated or laid off an employee who had asserted a right to this leave, the employer would be violating the ESA which protects an employee’s job in these circumstances.

How Long Does the Job Protection Last?

The right of the employee to not come to work, and be on this leave, lasts for as long as the declared state of emergency (under section 7.0.1 of the Emergency Management and Civil Protection Act) lasts.

Who Does the Leave Apply To?

Below you will see a long list describing who exactly is entitled to take this leave. The short version is that when there is a declared state of emergency, as there is now in Ontario, pretty much anyone who cannot come to work for some reason related to that state of emergency (self-quarantined as directed, taking care of someone who is sick, taking care of kids because daycares are closed etc) is entitled to the leave.  

The amendments entitle eligible employees to a leave of absence without pay for the following reasons:

  • Because of a declared emergency under section 7.0.1 of the Emergency Management and Civil Protection Act AND
    • an order applies to him or her under section 7.0.2 of the Emergency Management and Civil Protection Act,
      • orders include things like prohibiting travel or movement, closing public and private spaces
    • because he or she is needed to provide care or assistance to any of the following individuals:

      • The employee’s spouse.
      •  A parent, step-parent or foster parent of the employee or the employee’s spouse.
      •  A child, step-child or foster child of the employee or the employee’s spouse.
      •  A child who is under legal guardianship of the employee or the employee’s spouse.
      •  A brother, step-brother, sister or step-sister of the employee.
      •  A grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse.
      •  A brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee.
      •  A son-in-law or daughter-in-law of the employee or the employee’s spouse.
      •  An uncle or aunt of the employee or the employee’s spouse.
      • A nephew or niece of the employee or the employee’s spouse.
      • The spouse of the employee’s grandchild, uncle, aunt, nephew or niece.
      • A person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met.
      • Any individual prescribed as a family member for the purposes of this section.
    • because of such other reasons as may be prescribed; or
    • because of one or more of the following reasons related to a designated infectious disease:
      • The employee is under individual medical investigation, supervision or treatment related to the designated infectious disease.
      • The employee is acting in accordance with an order under section 22 or 35 of the Health Protection and Promotion Act that relates to the designated infectious disease.
      • The employee is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to the designated infectious disease issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means.
      • The employee is under a direction given by his or her employer in response to a concern of the employer that the employee may expose other individuals in the workplace to the designated infectious disease.
      • The employee is providing care or support to an individual (as listed above) because of a matter related to the designated infectious disease that concerns that individual, including, but not limited to, school or daycare closures.
      • The employee is directly affected by travel restrictions related to the designated infectious disease and, under the circumstances, cannot reasonably be expected to travel back to Ontario.
      • Such other reasons as may be prescribed.

What Proof Does My Employee Need to Assert this Leave Entitlement?

An employer may require an employee who takes this leave to provide evidence reasonable in the circumstances and at a time that is reasonable in the circumstances to substantiate their entitlement to the leave. An employer cannot require an employee to provide a certificate from a qualified health practitioner (doctor, nurse etc.) as evidence.

What this reasonable evidence might look like is unknown, but it’s pretty safe to say that any employee who asserts an entitlement to this leave will get it. Right now we know that there is a state of emergency, we know that people are being told to stay home, to self-quarantine etc, that schools and daycares are closed and that the parents need to look after their children. Likely requiring an employee to provide any evidence under current circumstances would be unreasonable. 

Can I Make My Employees Take this Leave?

Generally, your employee will need to meet the above criteria to take advantage of this leave and it will be up to the employee whether they want to go on this leave or not. Employers can, however, direct an employee not to attend work due to a concern about the spread of the infectious disease, in which case the employee may be placed on unpaid leave.

Can I Terminate or Lay Off Employees on this Leave?

If your employee is unable to attend work for one of the prescribed reasons – they are sick, in quarantine, stuck in another country, taking care of kids while schools are closed etc. – then terminating their employment or laying them off would be a violation of the ESA. 

Employees on this leave will be entitled to return to their jobs at the end of the leave. Once they are no longer entitled to the leave (and the job protection provided by the leave), they may be terminated or laid off, however, we encourage you to get legal advice prior to issuing a layoff or a termination, particularly where it intersects with an ESA leave.  

Please visit our Resources page for further updates and information on the impact, rules and best practices for addressing the global coronavirus outbreak in your workplace.

FAQs for Employers – Frequently asked questions by employers needing more information on the impact, rules and best practices for addressing the global coronavirus outbreak. (Last Updated March 18, 2020).

Further free resources can be found here.

Should you need legal advice on how to manage your workplace during the COVID-19 outbreak, please get in touch.

There are only a handful of essential services that are now requiring people to come in these days, with social distancing now being the norm in the midst of this COVID-19 outbreak (thank you to all the health care workers out there!!). While the trend has certainly been growing in recent years, working remotely is still fairly unusual. 

How to Remote

How is your workplace handling the transition from in-person to remote? We’ve blogged about remote working in the past and you can read our myriad of tips and tricks on our blog:

We are also offering a template Remote Worker Policy, on our resources page as part of our COVID-19 response materials.

There are concerns about the increased burden of connectivity due to working from home breaking the internet but in times like these, we aren’t left with many choices. 

Remote Workplace Culture

Working from home is not only about the tech (that’s the easy part!). 

Building and nurturing a remote workplace culture is about connecting with each other, continuing to build a strong team and making sure people feel invested in the company’s mission. This is especially so now in the middle of a pandemic – many people find work to be a social anchor in their life. 

You can replicate so much of that with video chats, telephone calls and message boards like Slack or Google Chat, but it does require a deliberate and thoughtful approach to how to modify workflow and communications. 

The biggest obstacle we are seeing is the old-school generation that wonders how you can trust people to actually work from home. Here’s our pro tip: get over it!!!!  People are far more likely to rise to the occasion, are probably more effective being closer to home and family in this bananas moment, and frankly, there are many tech tools that are more effective to monitor employees than your draconian managers, if you really need to. 

Breathing over people’s shoulders in person really isn’t what motivates people to work. 

We have always been virtual at SpringLaw. Our team is, and always has been, scattered across Ontario. We have a number of deliberate social anchors in our team’s workflow and our regular video chats keep us connected, even if we only see each other in person 4 times a year. This is a team effort and part of both group and 1:1 discussions to check in on what people need to be happy and productive at work. 

Get in touch if you have questions about how to solidify and foster company culture online and to ensure that your team can remain as productive and effective as possible during this period of social distancing.

FAQs for Employers – Frequently asked questions by employers needing more information on the impact, rules and best practices for addressing the global coronavirus outbreak. (Last Updated March 17, 2020).

Further free resources can be found here.

Should you need legal advice on how to manage your workplace during the COVID-19 outbreak, please get in touch.

I think we can all agree that the world is a little bonkers lately –  it seems like things are changing and getting more serious by the minute. Between the time I thought I was finished writing and ready to press “publish” Ontario declared a state of emergency. 

We are getting lots of questions from employers about what to do in the face of various impacts from COVID-19, as more and more measures come into place and make it harder for us to go about our daily lives and work.  

For some, businesses are shutting down and contracts to provide services are being cancelled. This is causing employers to think about how to scale back and how to be fair to their employees while also staying afloat. 

On the employee side, many now have unavoidable child care responsibilities as a result of the shutdown of schools and daycares, that are impacting their ability to work – even from home. 

Many employers are able to keep going and are implementing work from home where they can, but there are many who cannot work from home and who we need to go out in public. In addition to health care workers, think about those who keep our shelves stocked at the grocery store or the pharmacy. These employees are likely going to be expected to continue working. 

We have put together a wide-ranging FAQ for employers with answers to a lot of common questions. 

We will also be addressing COVID-19 issues on our Webinar this week, which you can watch live by registering here (on Wednesday, March 18 at 10:30 AM EST) or replay on our YouTube channel. 

For today, we are going to focus on the announcements by the Ontario government regarding proposed changes to the Employment Standards Act. You can read the Ontario news release here.

Job Protection for Employees Impacted by COVID-19

On March 16, the Ontario government announced that it intends to introduce legislation to provide job-protected leave to employees impacted by COVID-19. 

We have not seen the proposed legislation yet and the legislative process has a few steps (which normally take months!), but we anticipate that the legislation will pass and likely as quickly as bureaucratically possible. No one wants to seem unhelpful in the wake of a pandemic! 

The legislature is sitting on Thursday and the Premier’s goal is to have everything pass in one day! 

Job security or job-protected leave just means that the employer will not be able to terminate an employee if they need to take a leave for one of the COVID-19 related reasons. It does not mean that the employer must continue to pay the employee. A job-protected leave we are probably all familiar with is parental leave. You can’t take away someone’s job because they take a parental leave –  but you also don’t have to pay them while they are on that leave.

It’s unclear what the length of the job protection will be and likely a very open question, as no one likely knows how long someone may need to be away from work due to the pandemic. 

Who Will the Protections Apply To?

According to the news release, the leave will protect workers from termination in the following situations:

  • The employee is under medical investigation, supervision or treatment for COVID-19.
  • The employee is acting in accordance with an order under the Health Protection and Promotion Act.
  • The employee is in isolation or quarantine.
  • The employee is acting in accordance with public health information or direction.
  • The employer directs the employee not to work.
  • The employee needs to provide care to a person for a reason related to COVID-19 such as a school or day-care closure.

We will be interested to see if the situation of “employer directing the employee not to work” will include employers who are directing employees not to work because they are unable to provide work – they work in a restaurant that is closed, for example – or if this will be limited to employees who are asked not to come in due to symptoms. 

No Note Required

The proposed legislation would also make it clear that employees will not be required to provide a medical note to support their right to take a leave. The idea here being the medical system should not be gummed up by employees (who likely should be staying home) seeking doctors’ notes. This effectively means that anyone who asserts their right to take this leave will be able to take it, no questions asked. 

Changes Retroactive to January 25, 2020

Should the legislation pass, the amendments to the Employment Standards Act will be retroactive to January 25, 2020, the date that the first presumptive COVID-19 case was confirmed in Ontario.

Stay tuned for updates on the rapidly evolving legal landscape in the face of the pandemic. 

FAQs for Employers – Frequently asked questions by employers needing more information on the impact, rules and best practices for addressing the global coronavirus outbreak. (Last Updated March 16, 2020).

Further free resources can be found here.

Should you need legal advice on how to manage your workplace during the COVID-19 outbreak, please get in touch.

Workplace privacy is an evolving and somewhat muddy area of law. In Ontario, our key employment law statutes, the Employment Standards Act and the Occupational Health and Safety Act, are silent on the issue of privacy. Yet surveillance is ubiquitous. Employers often have cameras in the workplace, which end up providing them information about their employees, whether they were seeking it or not. Employers and employees often wonder, is this legal?

PIPEDA and Video Surveillance

The Personal Information Protection and Electronic Documents Act (PIPIEDA) is a privacy law that applies to private-sector organizations across Canada that collect, use or disclose personal information in the course of commercial activity. PIPIEDA defines a commercial activity as any particular transaction, act, or conduct, or any regular course of conduct that is of a commercial character, including the selling, bartering or leasing of donor, membership or other fundraising lists.

PIPEDA speaks to workplace privacy in that it broadly requires that an organization’s need to conduct video surveillance be balanced with the individuals being surveilled right to privacy. 

Cameras in the Workplace

The first thing an employer should consider when contemplating installing a camera to monitor a workplace is the purpose. In general, there should be a good reason to conduct surveillance. For example, is there a well-founded suspicion that someone is stealing? Are there safety or security concerns? 

Once a purpose is identified employers should consider if there are less intrusive means to meet that same purpose. If so, video surveillance may not be appropriate. 

Cameras Where?

In determining where the camera should go, and what they should be filming, employers should consider the employees’ reasonable expectations around workplace privacy and also keep the purpose in mind. A camera should not be installed in the bathroom, for example, or anywhere else where an employee has a reasonable expectation of privacy. In an open office environment employees likely will not have an expectation of privacy because they are in a common area.  

Audio recording employees without their knowledge could run an employer amock of the s.184 the Criminal Code. So surveillance should not include sound. 

Notice to Employees

Unless providing notice would somehow defeat the purpose – which may be the case if attempting to catch a thief – see s.7(1)(b) of PIPEDA – employees should be provided with notice of the surveillance and details as to what the surveillance will be used for. Employers should also develop privacy and surveillance policies.

Then What? 

If employees are well informed about the use of workplace cameras (placed appropriately and for an acceptable purpose) and employers catch misbehaviour, they are generally going to be free to use that information. 

For more on this topic, check out our past post. Do you have questions about workplace privacy? Get in touch for a consultation. 

Sometimes employees just kind of stop coming to work, leaving employers scratching their heads and wondering where they stand and what to do.

Absence Due to Illness

In many cases when an employee stops coming to work they will tie their absence to illness. Ever get this text? “hey can’t come in today, am sick.” Often an employee will call or text or email in sick for the first few days and then stop communicating. 

The connection to illness complicates the matter for employers, who have a duty under the Ontario Human Rights Code (“the Code”) to accommodate employees with disabilities up to the point of undue hardship. 

Is an illness a disability? Not necessarily. A cold or flu will generally not be considered a disability under the Code, but this doesn’t mean that employers can just decide an employee who is off sick for a few days has left their job or quit. 

Requesting More Information

Employers have a right to information from an employee about their health status and accommodation needs as they relate to the job. If an employee asserts that they are ill and stop coming to work, it is reasonable (and legal) for an employer to request a doctor’s note.

Employers should make the request detailed so that the doctor’s note can be useful to them. While employers are not entitled to private medical information, such as a diagnosis, they are entitled to know when the doctor expects the employee will be back at work, what accommodations they might need and so on. 

The key to respecting an employee’s private health information is to ensure that the information requested is connected to the employee’s ability to do their job. For example, if a job requires an employee to drive a vehicle for 8 hours a day, asking if the employee has any restrictions with respect to driving a vehicle for 8 hours a day is perfectly reasonable. 

And Getting No Information

So employers can request medical information, but it’s not uncommon for employees not to provide it. Then what? Employees are required to co-operate with their employer with respect to their accommodation needs. 

In order to be accommodated, which in the instance of illness due to absence will mean having their job held for them until they are well enough to come back, employees need to:

  • Request the accommodation – “hey, I need time off” 
  • Demonstrate the need for the accommodation and provide specifics of that need – provide a medical note with details of prognosis, restrictions etc. 
  • Co-operate with respect to accommodation – the employee won’t necessarily get the exact accommodation they want 

True Ghosting – What if the Employee Just Doesn’t Respond? 

If an employee truly just ghosts, an employer may be able to take the position that the employee has abandoned their job. The legal test for abandonment is as follows: 

Do the statements or actions of the employee, viewed objectively by a reasonable person, clearly and unequivocally indicate an intention to no longer be bound by the employment contract?

Where an employee does not respond to an employer, does not keep in touch and fails to provide medical evidence or updates, the test for abandonment may be met. Where an employee is deemed to have abandoned their job, it’s as if they have quit and they are not entitled to any notice or severance. In all cases, employees still need to be paid out for the time they worked and any accumulated, but unused, vacation. 

If you’re an employer with a ghosting employee, get in touch for a consultation. We can help you sort through your options.