August 21, 2020

McLennan Ross Update for Friday

 By McLennan Ross Labour & Employment Team

What we are seeing

  • On August 20, 2020, the Government of Canada announced further economic support for unemployed or under-employed workers. A link to the official news release can be found here.
  • Details from the announcement include:
    • A further 4-week extension of the the Canada Emergency Response Benefit (CERB) thereby increasing the total benefit available to 28 weeks from 24 weeks.
    • A transitioning from the CERB to a “more generous” Employment Insurance (EI) program which will expand eligibility, implementation of a benefit rate of $400 per week, and an accessibility period of 26 weeks.
    • The announcement of three new benefits:
      • The Canada Recovery Benefit (CRB), which will provide $400 per week for up to 26 weeks to workers who are self-employed or are not eligible for EI, who still require income support, and who are available and looking for work.
      • The Canada Recovery Sickness Benefit (CRSB) will provide $500 per week for up to two weeks for workers who are sick or must self-isolate for reasons related to COVID-19.
      • The Canada Recovery Caregiving Benefit (CRCB) will provide $500 per week for up to 26 weeks per household for eligible Canadians unable to work because they must care for a child or adult dependent.
  • Employers were advised that there would be a freeze of EI insurance premiums for two years to delay (but not eliminate) the financial impact on businesses who ultimately will have to fund these enhanced benefits.

What we are hearing
  • As the federal government prorogues Parliament, there is talk of much more expansive and expensive social programs and the “decarbonization of the economy”. It is worth questioning how government can afford such additional programs if not accompanied by significant economic growth; especially in Alberta where employers are wondering how much more the Alberta economy can take.

What we are saying
  • As lawyers try to predict how courts and tribunals will factor the pandemic into it is decision making, a recent Alberta Labour Board decision, although very much fact specific, suggests it may not be considered unique. This would thereby justify variations in the application of legal principles but will be classified as giving rise to economic uncertainty no different than other recessions in the past.
  • In Canadian Union of Public Employees, Local 2559 v Children First: Community Childcare Network Society, 2020 CanLII 53305 (AB LRB), CUPE applied to be the certified bargaining agent for a unit of employees of the Society. One of the objections to the application advanced by the Society was that the Board should not certify a bargaining agent during the COVID-19 pandemic, as the Society faces a difficult and uncertain economic future, and any bargaining relationship may be doomed to fail. The Society suggested that the current circumstance was historically unique and therefore justified an equally unique exercise of discretion.
  • The Society’s argument was assertively rejected by the Board and, in doing so, the Board commented “the COVID-19 pandemic is not the first time in Alberta’s history when employers have faced significant, even existential, economic uncertainty.”
  • Although certainly not precedent setting in terms of how all courts will interpret the impact of COVID-19 on matters before it, it is a cautionary tale that employers should not expect the courts to be overly sympathetic in labour and employment disputes. 

August 17, 2020

McLennan Ross Update for Monday

 By McLennan Ross Labour & Employment Team

What we are seeing

  • We have previously covered in great detail the various Alberta legislation and orders that amended statutory limitation periods due to the COVID-19 pandemic. Most specifically, the Ministerial Order 27/2020, which delayed certain limitation periods from March 17 to June 1, 2020. A link to that order is here
  • On July 27, 2020, the federal Bill C-20 received Royal Assent and enacted the Time Limits and Other Periods Act (COVID-19) that similarly addresses time limits included in federal legislation, including the Divorce Act, rules for civil cases in the Federal Court, and some key regulatory matters. The suspension is retroactive to March 13, 2020 and extends the time limits for a maximum duration of 6 months (until September 13, 2020):
    • The Act automatically suspends time limits established under federal legislation for starting a civil legal proceeding or doing something in a civil legal proceeding from March 13, 2020 to September 13, 2020, unless an earlier date is fixed by order; and
    • Federal ministers may extend or suspend time limits and other periods in specific federal legislation for which they are responsible.

What we are hearing
  • Bill 24, the Pandemic Response Statutes Amendment Act, received Royal Assent and came into force. The Bill retroactively (from May 15, 2020) amends three Acts, the Personal Directives Act, the Powers of Attorney Act, and the Wills and Succession Act to permit remote witnessing and execution of estate planning documents, when legal services are provided by a lawyer and all parties are able to communicate in real time by video conference. The amendments also permit estate planning documents to be signed in counterpart. The amendments only stay in force until August 2022 unless renewed. We expect the Government of Alberta will consult with legal practitioners in the area to measure the impact of this amendment to see if remote witnessing and execution should be allowed permanently. A copy of Bill 24 can be found here.

What we are saying
  • As we have discussed previously, the Government of Canada has announced that it will not be extending the eligibility period for the Canada Emergency Response Benefit (CERB) beyond 24-weeks. Employers will soon be facing situations where they must recall employees who may have been the subject of a temporary layoff or risk the employee looking for replacement income elsewhere and not being available to return once the employer has a need to expand the workforce. A question that has arisen is whether an employer can apply for and receive the Canada Emergency Wage Subsidy (CEWS) for amounts paid by the employer to an employee who is not actively at work. From a review of the online information published by the Government of Canada, the answer appears to be yes.
  • The Government of Canada  published a Frequently Asked Questions (FAQ) web page for the CEWS, access the link here. One question answered on the FAQ is whether an employer can claim the CEWS for an employee that the employer hires back and pays retroactively, presumably without the employee having supplied services during that retroactive period. The FAQ states that “[i]t is possible for an eligible employer to hire back eligible employees and pay them retroactively in respect of a claim period, to be able to qualify for the wage subsidy.”
  • The Government of Canada has also published a backgrounder, link here, for the recent changes to the CEWS program that states that certain employers can receive the CEWS for furloughed employees, for which benefits would be adjusted to be aligned with the CERB amount received by the employee.

August 13, 2020

McLennan Ross Update for Thursday

By McLennan Ross Labour & Employment Team

What we are seeing

  • The Alberta Ministerial Order 18.2020, which modified layoffs, group terminations, scheduling notice, and Personal and Family Responsibility Leave, expires on August 14, 2020. In its place, certain parts of Bill 32 relating to the Employment Standards Code take effect on August 15, 2020. These new provisions include the following:
    • the new temporary layoff provisions, under which temporary layoffs do not become terminations until there are one or more periods exceeding 90 days of layoff with a 120-day period. Note: the new layoff provisions that no longer require notice of layoffs do not become effective until November 1, 2020;
    • a continuation of the COVID-19 layoff provision, under which a layoff does not become a termination until more than 180 consecutive days;
    • the permanent changes to group termination, which require 4 weeks' notice to the Minister of Labour only where an employer is terminating 50 or more employees at a single location within a 4-week period;
    • the changes in respect to variances and exemptions.
  • Other changes to the Employment Standards Code introduced in Bill 32 do not become effective until November 1, 2020. This includes changes in respect to the timing of termination payments, the new provisions on deductions from employee pay, changes in respect to rest periods and scheduling, the new averaging arrangements, the new calculation for holiday pay, and the removal of layoff notice. 

What we are hearing

  • Generally, mask bylaws are becoming increasingly commonplace across Alberta. These bylaws regulate the use of masks in public places, but generally do not apply to private areas such as the workplace, unless the public can access the workplace, even if required to pay an entry fee to do so. 
  • That the bylaws do not apply to private workplaces is logical. An employer has the legal obligation to provide a safe workplace for employees. The Chief Medical Officer of Alberta has provided numerous and detailed guidance documents for businesses of all types in Alberta that have been permitted to reopen. As the employer can and must control its workplace, it has the ability, unlike in a public setting, to mandate social distancing and the required cleaning and disinfecting.

What we are saying
  • It has now been over 140 days since the public health state of emergency was declared in Alberta and employers began issuing notice of temporary layoff under Sections 62 to 64 of the Alberta Employment Standards Code. As the economy in Alberta remains poor, employers are considering what to do once the 180-day maximum temporary layoff period for COVID-19 related layoffs approaches.
  • Employers are concerned about not being economically able to recall all employees, yet do not want to terminate the employment relationship, lose the service of some employees when the business does develop a need for them, and also have to provide a severance package. To avoid a termination and continue to take advantage of the layoff provisions, we have been asked how long an employee must be actively working after being recalled from a temporary layoff before a new layoff notice can be issued. 
  • Section 62 of the Employment Standards Code used to permit layoffs up to 60 days without qualification, and the concern about abuse of the provision was identified in a 2003 Court of Queen's Bench decision that considered Sections 62 to 64 as they were written. The Court commented on the provisions being potentially abused by employers to continually recall and layoff employees to avoid having to provide notice of termination or termination pay; however, the Court did not opine on whether such actions would be contrary to the legislation. 
  • On appeal, the Court of Appeal recognized that the legislation as written permits a temporary layoff "and the employee has no assurance that if he or she returns to work for a period of time, for example 10 days, that the layoff will not recommence thereafter", which seems to again identify the potential of back to back layoffs without commenting on the propriety of such actions by employers. 
  • Perhaps to address this concern, Section 62 to 64 were amended in 2017. One of the changes was to limit the permitted layoff period from 60 days to less than "one or more periods exceeding, in total, 60 days within a 120-day period". The 2017 amendments allowed for an extension of the layoff period, but only if the employer paid the employee "wages or an amount instead of wages" or "makes payments for the benefit of the laid-off employee in accordance with a pension or employee insurance plan or similar plan". The recent amendments to the Code resulting from the passing of Bill 32 keeps the provision the same as the 2017 amendments. However, it increases the permitted lay off period from 60 days to 90 days within a 120-day period. 
  • The temporary COVID-19 amendment to Sections 62 to 64 of the Code are analogous to the pre-2017 provisions as it states that a layoff can last up to 180 days and is silent about how long an employee must be actively employed before being eligible to be laid off again. As such, it is arguable that so long as the layoff continues to be related to COVID-19, an employee can be temporarily laid off again after a short period of active employment. As much as the court decisions commented on such actions as being a potential abuse of the legislation, neither decision said such use would be unlawful and neither were considering the legislation in the context of a pandemic. Further, the Alberta Government must have been aware of these two decisions and the basis for the 2017 Code amendments, as exemplified by the wording of the further amendments in Bill 32. 
  • As a result, subject to the second layoff continuing to be genuinely caused by the impact of COVID-19, the legislation appears to allow for a new temporary layoff after a short return to active employment. Employers need to be mindful that doing so may appear artificial and could lead to a challenge by the aggrieved employee. It is also possible new layoffs could be determined to fall under the normal layoff provisions instead of the COVID-19 layoff provisions. 
  • We again caution that it is still unclear whether a temporary layoff under the Code would constitute constructive termination at common law, which we discussed back in March, 2020 here

August 10, 2020

McLennan Ross Update for Monday

 By McLennan Ross Labour & Employment Team

What we are seeing

  • Alberta's unemployment rate dropped in July to 12.8%, although it remains the second highest rate in the country. Further, 8,200 businesses in Alberta shut their doors in March 2020, followed by another 11,300 businesses in April. These statistics do not account for contractors or other self-employed individuals who could not find work during the same time period. According to the Canadian Federation of Independent Businesses, Alberta has the highest percentage of small businesses still at risk of closure anywhere in Canada, with the estimates from 8% to as high as 25%, and the mid-range estimate being 19%.

What we are hearing
  • It has been confirmed by two different media sources that Alberta will be discontinuing the use of its mobile tracing app, ABTraceTogether, which was first unveiled on May 1, 2020 and will switch to a national app, the COVID Alert exposure notification application. Both apps use Bluetooth technology to determine if a user has come into contact with someone who has been diagnosed with COVID-19. If so, the user would be notified so that he or she could self-isolate and prevent further spread of the virus. AHS will be providing details regarding how the national app will be adopted in Alberta.
  • On July 31, 2020, the Office of the Privacy Commissioner of Canada (OPC) and the Office of the Information and Privacy Commissioner of Ontario (IPC) issued a news release confirming that they had concluded their joint review of the COVID Alert app and support the voluntary use of the app. Although some disclosure of personal information was possible, it was a permissible risk in light of the greater health issues at stake and the fact that use of the app is voluntary.
  • In a separate statement, IPC reiterated that it had requested the Ontario Government to issue strong public messages encouraging businesses and employers to respect the voluntary nature of COVID Alert by not compelling individuals to use the app. This statement seems to make it clear that if any employer compels the use of the app by employees, it may be open to a viable complaint under the privacy legislation. Based on previous statements from the Alberta Privacy Commissioner, we expect a similar approach will be taken in Alberta.

What we are saying
  • As Alberta's daily infection rate continues to average over 100 per day, the average number of new cases per million citizens is double that of Ontario, the Chief Medical Officer is cautioning against Alberta becoming complacent about following public health guidance of masks, social distancing, and hygiene, and is blaming the recent spike in cases on factors other than decreased vigilance. However, the number of deaths from COVID-19 and required use of ICU remain low.

August 6, 2020

McLennan Ross Update for Thursday

By McLennan Ross Labour & Employment Team

What we are seeing
  • The Government of Canada has confirmed that the Canada Emergency Response Benefit (CERB) will not be extended after applicants have reached the current maximum benefit entitlement or the final eligibility period ends on September 26, 2020. Although economies across the country are slowly reopening, the Government has stated that it believes additional financial assistance beyond Employment Insurance will be required and is looking at offering a parallel benefit, which would contemplate some level of governmental assistance in addition to income available to be earned from part-time or gig economy jobs.
  • The Government of Canada had previously announced that the extension and expansion of the Canada Emergency Wage Subsidy (CEWS) program will continue until December 19, 2020, which we discussed here. The expansion of the program has been well received. However, some caution has been expressed regarding the complexity of the calculations to determine if a business qualifies for the subsidy and the significant penalties if the subsidy is received in error. A backgrounder to assist in the calculations can be found here.

What we are hearing
  • The Government of Alberta updated its re-entry plan for K to 12 students on July 21, 2020 by requiring students from Grades 4 to 12 to wear masks where physical distancing cannot be maintained, including on school buses. The Government will distribute 2 reusable masks to each student and staff member, with school staff also being provided with a reusable face shield. The Government will also be providing hand sanitizer, contactless thermometers, and staff testing.
  • Although this update to require masks has been welcomed by staff and parents, concerns are still being expressed about whether children will be 100% safe attending school. With respect, that is not the measure that should be used. Not reopening schools puts a thumb on the economy and prevents some businesses from returning to near normal operations. Further, it is often those frontline workers who are most at risk that require schools to be reopened so that they do not have to stay at home not getting paid, or direct a percentage of income to pay for childcare.
  • We have no doubt that the Government of Alberta will be vigilant in monitoring the statistics once schools reopen to ensure that children returning to school are no more at risk than going to the grocery store or playing at a playground. Contracting COVID-19 will be an ever-present risk for all Albertans until a vaccine has been developed. All citizens should focus on having a functional day-to-day life, but at all times following public health guidelines to limit the spread as best as possible.

What we are saying
  • For many employers who placed employees on temporary leave after the declaration of the public health state of emergency in March 2020, the maximum 120-day layoff period is about to expire. As we reported here, the maximum 120-day layoff period was extended when the layoff was due to COVID-19 related issues for up to 180 days. Employers are inquiring if the layoff period automatically extends to 180 days or whether notice that the layoff period has been extended is required.
  • As the 180-day period is a maximum, we recommend that the employee be given notice that the 20-day period in the original layoff notice has been extended to 180 days. This notice can be via email or letter. Further notice is probably not required as section 62 of the Employment Standards Code does not state that the employer has to provide the length of the notice when advising employees of a temporary layoff. However, as it is fairly easy to provide notice of the extension, we still recommend that employers advise affected employees that the layoff has been extended in order to avoid an argument that the employer has not strictly complied with the legislation.

July 28, 2020

McLennan Ross Update for Tuesday

By McLennan Ross Labour & Employment Team

What we are seeing
  • Alberta's Chief Medical Officer of Health, Dr. Hinshaw, stated bluntly on July 27, 2020 that Alberta's curve measuring new COVID-19 infections is no longer flat and is trending upward at a worrisome rate. Since moving from Stage 1 to Stage 2 of the relaunch strategy, Alberta has seen the number of active cases skyrocket from 403 to 1,430.
  • With the worrisome trend identified by Dr. Hinshaw in mind, but with the goal of not moving back to Stage 1, a number of municipalities across Alberta are either considering or have already announced public mask bylaws. The City of Edmonton will hold a special meeting on July 29, 2020 to debate and vote on such a bylaw, which would be effective August 1, 2020.

What we are hearing
  • The City of Calgary issued the text for its new mask bylaw. It also issued a business operators guide to assist in understanding the scope of the bylaw. The new mask bylaw and business operators guide are both available here.
  • Key takeaways from the text of the bylaw and the guide include:
    • Businesses are required under the bylaw to post specific signage attached as Schedule A to the bylaw. Although the City of Calgary has said that business operators will not be obligated to enforce the bylaw by evicting persons refusing to comply with it, the bylaw does make it an offence to contravene any portion of the bylaw. This would appear to make it possible that businesses can be fined for not posting the required signage.
    • The bylaw does not make it mandatory for a bylaw officer to issue a violation ticket if there has been a contravention of the bylaw, making it clear that warnings will likely be the short-term result of a violation.
    • In unusual circumstances, such as a wanton breach of the bylaw, the bylaw permits the bylaw officer to issue a violation ticket, which requires a court appearance. The bylaw allows the Court to deviate from the specified penalty "if the totality of the circumstances surrounding any contravention of this bylaw indicate a marked endangerment or increased risk of endangering public health".
    • The bylaw contains a list of exceptions where it does not apply. The business operators guide states that proof is not required if someone claims to be excepted from the operation of the bylaw and businesses are not expected to deny services to persons not wearing a mask.

What we are saying
  • One of the questions that is not specifically addressed in the text of the bylaw or the business operators guide is whether the waiting area of an office space would be considered a public area.
  • Although obviously subject to change once particulars are provided, it is our expectation that such a waiting area would not be considered a public area. Although most anyone can enter into a waiting area during business hours, only those invited to be there by having business to discuss with someone at the office space would be allowed to stay. As such, we believe that the bylaw may indicated that such places are analogous to a place that can only be accessed through membership or invitation.

July 23, 2020

McLennan Ross Update for Thursday

By McLennan Ross Labour & Employment Team

What we are seeing
  • Calgary city council voted to approve a new bylaw making it mandatory to wear masks in public areas, on public transit, or when using ride share services. Although the final version of the bylaw is still subject to change, the following appears to be the intended scope:
    • The definition of public areas will include grocery stores, malls, and places of worship.
    • Public areas will likely not include any area where a membership is required for access e.g., a private gym. However, it would apply to people attending a public health facility unless they are exercising.
    • The bylaw will not apply to schools or daycares.
    • Businesses may be permitted to receive exceptions to the application of bylaw depending on the nature of the business e.g., masks not being mandatory if it prevents getting the offered service, such as a restaurant or dentist. 
    • Masks will also not be required if an employee is in a restricted access area, such as a back office or storeroom. 
    • Other exceptions will be based on the individual accessing the public area. Masks will not be required for children under 2; people with underlying medical conditions or disabilities that inhibit the ability to wear a mask; people who cannot put on or take off a mask without assistance; and those providing care-giving services which would be hindered by the mask.
  • Although not fully clear, it appears that the enforcement of the bylaw will not be left solely to the business owner, as it appears to be the case in Ontario, and as we discussed earlier in our blog
  • Although businesses may face a fine for failing to enforce the bylaw, individuals appear to also be subject to punishment for failing to adhere to the mask requirement.

What we are hearing
  • The Government of Alberta announced its re-entry plan for K to 12 students on July 21, 2020. As we discussed here earlier, the three options were:
    • In-school classes resume with near-normal operations while still following public health measures and directions;
    • In-school classes partially resume with modified routines, smaller class sizes, cohorts, and alternative day or week attendance; or
    • Continued, although enhanced, at-home learning.
  • The plan announced by the province is for schools to resume with near normal operations.
  • Although some people are concerned about whether the enhanced public health measures will be sufficient to protect students, teachers, and other service providers required to attend at a school, this decision was made in consultation with public health officials and is a rational and good faith attempt to balance the health needs of Albertans with the need for children to receive both education and social interaction.

What we are saying
  • With the mask bylaw soon to be in place in Calgary, employers will be required to have their employees in public areas enforce the bylaw, which may lead to unfortunate confrontations as has been the experience in other cities such as Toronto and Ottawa. 
  • It is unlikely that requiring staff to wear masks and enforce the bylaw would be considered a material change in the terms and conditions of employment. We recommend a written policy be implemented with a stated requirement that employees enforce the bylaw, a procedure for doing so, and a direction for the employee to avoid conflict by seeking the assistance of a manager or an external resource to deal with an uncooperative customer.
  • Having such a written policy will also allow an employer to respond to the suggestion from a bylaw officer that it failed to direct its employees to follow the bylaw. It will also allow the employer to more easily discipline employees who refuse to follow the codified policy.

July 20, 2020

McLennan Ross Update for Monday

By McLennan Ross Labour & Employment Team

What we are seeing
  • The Government of Canada announced on July 17, 2020 that it would extend the Canada Emergency Wage Subsidy (CEWS) program to December 19, 2020, and would introduce modifications to the program to allow for more access by business to the subsidy. This includes allowing participation for employers who suffered a revenue decline of less than 30% and continued eligibility for employers whose revenues are no longer more than 30% year over year.
  • As part of the CEWS program modifications, the Government also introduced a new top-up subsidy of up to an additional 25% for employers that have been most adversely affected by the pandemic. This subsidy was suggested to be particularly helpful to employers in industries that are recovering more slowly. Details regarding this new top-up subsidy have yet to be provided.
  • The Government of Canada also announced on July 16, 2020 that it would be providing $19 billion to provinces and territories to assist with the costs associated with restarting the economy.The funding acknowledges that businesses will require internal and external assistance in overcoming barriers to reopening such as the purchase of PPE, ensuring there is childcare available for employees, and enhancing testing and tracing programs.

What we are hearing
  • Included in the $19 billion federal assistance program was money earmarked for municipal and local governments. $2 billion is expressly allocated towards the operating costs of Canadian cities for six to eight months, with provinces and territories required to match that amount from their own funds. The federal government would also match funding put toward public transit, up to $1.8 billion.

What we are saying
  • There has been criticism by unions of the proposed changes to the Labour Relations Code found in Bill 32, which we summarized here
  • In our view, these criticisms are unfounded:
    • Union leaders have complained that forcing employees to opt-in if they want union dues put towards political parties or causes will "silence" the unions on issues such as lobbying for increased worker health and safety programs or paid sick leave, issues unions characterize as a primary concern to members of the union. We disagree with this concern as workers will clearly opt-in and allow dues to be used to support lobbying on issues that they support. The amendment is designed to hold unions accountable for the use of their members' dues for tertiary concerns or for purposes which do not have the support of the rank and file members. 
    • Unions have also expressed concerns about having to apply to the Labour Relations Board (LRB) to get permission for workers to picket at a place other than the worker's place of employment. Although this additional step may slightly delay the ability of a union to legitimately picket at an "ally" of the employer, if the picket line is justified at the third-party location, the LRB will grant permission. This is a much more rational and cost-effective procedure than forcing third-party employers to seek injunctions, which are expensive and untimely options while one's business is being impacted by an illegal picket line. 
  • Bill 32 is not a "union busting" piece of legislation. It is an effort to re-balance the Code from changes by the NDP that were union-friendly and impractical. The new changes could have gone farther than they do. 
  • The changes in respect to union dues are designed to give power to union members over what they want to spend their money on. Unions are supposed to represent their members. If unions are spending union dues on things their members do not support, the last thing they should be doing is undermining the wishes of workers. It is contrary to the mandate of unions to be critical of how the workers they represent want and do not want to use their resources. The new measures are an important check on unions abusing their power. The changes do not stop how unions spend their money. They just require that workers represented by unions support certain non-core expenditures. As unions are supposed to represent workers, it is difficult to understand how unions can legitimately criticize legislation that gives workers the right to decide how their union dues will be spent.

July 17, 2020

McLennan Ross Update for Thursday

By McLennan Ross Labour & Employment Team
As of July 6, 2020, we will only be publishing our blog twice a week, predominantly on Mondays and Thursdays. 

What we are seeing
  • The Government of Ontario announced on July 13, 2020, that most of the province, with the general exception of the Greater Toronto Area, would move to Stage 3 of its reopening plan effective July 17, 2020. It also provided more details regarding Stage 3, link here. In summary, the plan calls for the continuation of general safeguards such as social distancing, the wearing of masks when in public places and where social distancing is impossible, restrictions on the size of indoor and outdoor gatherings and minimizing travel.
  • Conspicuous in its absence from the Ontario announcement was any discussion of school re-openings, with the only reference in the document being to earlier disclosure, which set out the three possible options for school reopening (100% at-home learning, modified school day routine with smaller classes sizes, and alternate day attendance or normal school day routine with enhanced public health protocols), link here.
  • The Government of Alberta announced on July 12, 2020, that its transition to Stage 3 of its relaunch strategy was on the horizon. However, the current trend of an increase in cases, especially among those under 40, was called concerning on July 15, 2020 by the province’s Chief Medical Officer of health. In light of this, it seems likely that a move to Stage 3 will be paused until the number of new cases per day stabilizes at a slightly lower level.  

What we are hearing
  • The lack of certainty regarding school re-openings will make Alberta’s economic recovery more difficult. Any proposal that involves home schooling for part or all of the school week will put increased pressure on parents to stay home from work and continue to work remotely.  In light of the finite amount of space and other resources available to schools, it is not clear how the balancing of health safety and child education can be met.  
  • It is interesting that some health experts believe full-time school may be safer than part-time attendance, the argument being that the greater amount of time students and teachers spend together in full-time school may actually decrease the total interactions students have with people outside of their home per week. Full-time school will leave less unstructured time available for students when additional interactions with a greater variety of people (with a greater risk of exposure to COVID-19) can occur. In light of the significant economic benefit of allowing employees to return to work full-time, it may be that if schools are comfortable enough to reopen, full-time may be safer for all than part-time, without taking into account the mental health benefit to parents of not having to home school.

What we are saying
  • As Calgary continues to debate the merits of a bylaw mandating mask wearing in public places, Toronto is experiencing difficulties with its own bylaw. For the most part, Toronto residents are being respectful of the bylaw. However that may change as reports that the city is leaving it to businesses owners and operators to enforce the bylaw become more widespread. Further, the liability for the $1,000 fine under the bylaw rests with the business that allows someone to not wear a mask in its premises as opposed to the customer who refuses to wear a mask. The issue becomes more complicated in light of the fact that those with legitimate medical or religious reasons for not wearing masks are exempt from the bylaw.
  • There would be myriad legal and practical issues faced by an employer if such a bylaw was introduced in Calgary with a similar exemption:
    • What evidence of a medical or religious reason for not wearing a mask can employees ask for from a member of the public;
    • If an employee does not accept the validity of the stated medical or religious reason and refuses to provide service, is the employer exposed to a human rights complaint; and
    • If an employee makes the determination that the reason given by the customer is legitimate but a bylaw officer appears, concludes otherwise and issues a fine, how can the employer dispute the violation, especially if the customer refuses to cooperate?
  • Issues also arise with respect to forcing employees  to enforce the bylaw, especially when met with a vitriolic and aggressive response from a customer.  

July 13, 2020

McLennan Ross Update for Monday

By McLennan Ross Labour & Employment Team
As of July 6, 2020, we will only be publishing our blog twice a week, predominantly on Mondays and Thursdays. 
What we are seeing
  • The Government of Ontario announced on July 10, 2020 that it would be providing details regarding Stage 3 of its reopening plan on July 13, 2020. Most of Ontario moved to Stage 2 on Jun 19, 2020 with the Greater Toronto Area being delayed by 5 days. Thus far, the only guidance from the Ontario government has been to state generally that Stage 3 would allow for the reopening of most remaining workplaces and community spaces, albeit with the gradual lifting of restrictions, and for workplace safety guidance to remain in place and available. 
  • To date, the Government of Alberta has provided an estimate of when Alberta will move to Stage 3 of its relaunch strategy. A review of Alberta's relaunch plan document suggests that a move to Stage 3 will not occur in the immediate future unless there are some modifications of the plan. Currently, if the plan is followed, a move to Stage 3 will mean that masks are unnecessary and there is no longer any need for the isolation and quarantine measures that have been in place since the declaration of the public health state of emergency in March 2020.

What we are hearing
  • Alberta's relaunch strategy also states that public masks are unnecessary in Stage 3. It is doubtful that such advice will be an express part of Alberta's or Ontario's Stage 3 plans, although it is likely each province will leave the matter up to local governments. 
  • On June 30, 2020, the City of Toronto passed a bylaw requiring masks or face coverings in all enclosed public places as of July 7, 2020. The measure followed advice from Toronto's Medical Officer of Health for Council to legislate for the protection of the health, safety, and well-being of persons in Toronto and enact the temporary bylaw to prevent a resurgence of COVID-19 cases. 
  • On July 8, 2020, Mayor Nenshi of Calgary indicated that he would consider bringing forward a motion to implement a similar bylaw if Calgarians were not voluntarily wearing masks in public and when on public transit. There has been some discussion in Edmonton regarding enacting a similar bylaw, but with less express support. 
  • It is anticipated that both cities will monitor the number of new cases and whether the public follows the general social distancing and hygiene directions of the provincial government. If there is no significant spike in cases, a mask bylaw will prove necessary.

What we are saying
  • On July 9, 2020, the Privacy Commissioner of Alberta released a 66-page Privacy Impact Assessment Review Report regarding the ALberta Health ABTraceTogether app. 
  • The Report found generally that as the use of the app was largely voluntary, the person using the app was effectively choosing to provide their health and personal information and therefore such individual control addressed most privacy concerns. The Commissioner did find that when first introduced, there was a real concern about the possible secondary use of personal information collected by the app, such as quarantine enforcement. In response to that concern, Alberta Health developed a policy that prohibited the use of that information for such other purposes. 
  • Of note for employers was that the Commissioner stated that for employees in the public, health, and private sectors who are issued devices by their employer or use their own devices for work purposes, the risk mitigation Alberta Health has put in place is insufficient. Employers have legal obligations under Alberta's Personal Information Protection Act, as well as other applicable privacy legislation, to make reasonable security arrangements to protect health and personal information in their custody or control. The risks represent a potential contravention of Alberta's privacy laws by regulated entities if they were to allow employees or affiliates to run the app on enterprise-issued devices that store or make other health or personal information accessible. 
  • Based on this assessment, we believe that it would be a violation of the Personal Information Protection Act for an employer to mandate that its employees download and use the app.

July 8, 2020

McLennan Ross Update for Wednesday

By McLennan Ross Labour & Employment Team
What we are seeing
  • As we commented in our e-Alert sent out on July 7, 2020, the Government of Alberta has just introduced Bill 32, Restoring Balance in Alberta's Workplaces Act, 2020, which contemplates changes to improve the Labour Relations Code and Employment Standards Code, and gives a lift to employers as they generate employment in the wake of COVID-19. This Bill addresses many of the problems encountered by employers flowing from the 2017-18 changes to the Labour Relations Code and Employment Standards Code passed by the NDP government at that time. 
  • The changes to the Employment Standards Code include a more thoughtful and workable structure for averaging arrangements with employees who work varying work schedules and compressed work weeks, providing the employer with more time to pay a departing employee his or her final earnings, extending the temporary layoff period, removing prohibitively expensive group termination provisions, expressly permitting recovery of amounts paid to an employee in error or vacation pay provided to a departing employee in advance of it being earned, changing hours of work and rest periods, and streamlining the process for employers to apply for permitted variances to the Code
  • There were two required changes that were made obvious by the COVID-19 pandemic: 
    • A permanent change to the layoff provisions of the Code to extend the maximum initial layoff period from 60 days to 90 days within a 120-day period (although temporary amendment allowing a COVID-19 related layoff to be up to 180 days is still in place); and
    • A return to the old rules with respect to group terminations, with employers having to provide 4 weeks of notice to the Minister of Labour only for a group termination of 50 employees or more, with the group termination notice requirement being removed from the individual termination notice or pay in lieu of notice requirements. 
  • There are numerous changes to the Labour Relations Code, including tightening the conditions for remedial certification and first contract arbitration, removing arbitrary time limits in certification and revocation applications, allowing early renewal of collective agreements, removing arbitrator powers to ignore grievance time limits, providing a financial disclosure obligation to unions, requiring worker opt-in for union dues related to political and social causes, changing many aspects of the Code relating to the construction industry, and adding a reverse onus to unfair labour practice complaints against unions and reducing the application of reverse onus in complaints against employers. 
  • McLennan Ross is hosting a webinar on July 22 to discuss these legislative changes. Information on the webinar can be found here

What we are hearing
  • The Alberta Courts issued a notice to the profession and the public requiring face masks to be worn in all public places in any courthouse as well as in the courtroom when directed to do so by the presiding Judge or Master. Children under two years of age, persons with a medical condition or disability that inhibits wearing a face mask, and persons who are unable to place or remove a face mask without assistance are exempt from these requirements. This notice is a clear indication that the courts intend to increase the number of matters being argued in person as opposed to continuing to focus on remote hearings. 
  • On July 7, 2020, the Court of Queen's Bench announced that subject to availability, it would attempt to hear short Family, Civil, and Commercial trials or other Family, Civil, and Commercial matters via WebEx video and in-person. The Court had previously announced that it would be using this time to hear short, judge-alone Criminal trials, but it is opening up the time to these other matters if there are not enough short Criminal trials to use up all of the available court time.

What we are saying
  • With the workplaces reopening, questions are being asked about how the Workers Compensation Act applies to an employee contracting COVID-19 when it is not clear if the infection occurred in the workplace.
  • The WCB issued a fact sheet for employees in March 2020 that stated "[L]ike any other claim, WCB-Alberta must determine whether your exposure to the disease arose out of the course of your employment and was caused by an employment hazard (in this case, workplace exposure to the virus)." WCB has not updated this fact sheet and does not address how difficult it will be for an empoyee to prove that he or she contracted COVID-19 in the workplace. This will place a burden on employers as they reopen, for if an employee has COVID-19 or has to self-quarantine due to a concern about infection, that employee may be entitled to use paid sick leave or short-term disability coverage, which some employers self-fund.

July 6, 2020

McLennan Ross Update for Monday

By McLennan Ross Labour & Employment Team
What we are seeing
  • The Government of Alberta continues to issue sector specific guidance for businesses reopening as part of the relaunch strategy. Recent guidance documents have been issued or updated for campgrounds, grocery stores, hotels and vacation rentals, outdoor events, restaurants and bars, taxis and rideshares, drive-in events, public rallies, wellness services, and recreation. All of the guidance documents can be found here.

What we are hearing
  • On June 29, 2020, the Provincial Court of Alberta announced that effectively July 6, 2020, it would be increasing the number of matters that can be heard in person at certain locations. The Court will be enforcing strict health and safety measures including physical distancing, wearing masks, modifying courtrooms, and enhanced cleaning. 
  • All civil matters scheduled after July 6, 2020 will proceed as scheduled, including in-person mediations, pretrial conferences, trials, and other applications. In Edmonton and Calgary, pretrial conferences and applications will be conducted in person. In areas outside of Edmonton and Calgary, pretrial conferences and applications will be conducted by telephone. 
  • It has been unclear how the Courts would reopen for trials. It may be that the Provincial Court will be the test court, and if it can allow matters to proceed in person without infection, the Court of Queen's Bench may follow the same procedures.

What we are saying
  • With the courts slowly reopening and the implementation of new procedures to allow parties to move existing court actions forward, we are confident that the courts will expect parties to show cooperation and good faith effort to facilitate resolution of interim or procedural issues. Although we expect the courts to be sympathetic to struggling businesses engaged in litigation, as we move through Stage 2 of the relaunch, we expect courts will not accept the existence of the public health state of emergency as a continuing excuse for not meeting obligations under the Alberta Rules of Court
  • Our advice is for parties to existing litigation to be ready to move matters forward and find the time to commit to the litigation. If the commitment of such resources at this time is still not possible, litigants should objectively document any ongoing limitations being faced by that party that justifies not taking required steps.

June 29, 2020

McLennan Ross Update for Monday

By McLennan Ross Labour & Employment Team
What we are seeing
  • On June 28, 2020, the Government of Alberta announced the opening of its Small and Medium Enterprise Relaunch Grant program. This program provides financial assistance for eligible businesses, cooperatives, and non-profit organizations with less than 500 employees in the form of a grant equal to 15% of their pre-COVID-19 monthly revenue up to $5,000. 
  • The purpose of the grant is to offset such unique COVID-19 expenses such as the installation of physical barriers, PPE, and cleaning supplies as well as more basic costs such as rent, employee wages, replacing inventory, and more. 
  • In order to potentially qualify for assistance, businesses must have: 
    • Faced operational restrictions or closures as a result of public health orders;
    • Experienced a resulting revenue loss of at least 50% in April and/or May 2020; and
    • Be open or plan to reopen as permitted by the lifting of the public health orders. 
  • The program has a budget of $200 million. Application intake started on June 29, 2020. First week applications will be accepted from different regions on different days starting July 4, 2020. THe program will stay in effect until the later of August 31, 2020 or four weeks following the start of Stage 3 of Alberta's relaunch strategy. 
  • One limit to the program is that businesses that received other government assistance such as Canada Emergency Wage Subsidy (CEWS), the Canada Emergency Commercial Rent Assistance (CECRA), or even a loan through the Canada Emergency Business Account (CEBA), are not eligible.
  • This eligibility exclusion may prevent the program from providing the assistance many small businesses in Alberta legitimately need. 

What we are hearing
  • On June 25, 2020, the Government of Alberta provided guidance for industry-initiated COVID-19 testing. This guidance covers all COVID-19 testing requested and paid for by a private enterprise for its employees, contractors, or clients. 
  • Although fairly general, the guidance provides the following important points: 
    • COVID-19 testing must be performed on a voluntary basis, with worker consent; 
    • Only authorized labs can conduct the testing; 
    • All results, whether positive or negative, must be reported to the Chief Medical Officer of Health for Alberta and the Zone Medical Officer of Health; and
    • Industry-initiated testing will be suspended if supplies and/or testing capacity are in short supply and need to be allocated to public testing efforts for priority clinical purposes. 
  • Finally, the document is quite specific in that it does not relieve employers of potential liability for improperly managed testing or for having an unsafe workplace. The document directs employers to seek legal advice on issues of human rights, labour and employment law, privacy, health information, and occupational health and safety before implementing a testing program. Employers should then develop a company policy related to COVID-19 testing based on this advice.

What we are saying
  • With Bill 24 passing third reading, employers are asking how to extend a temporary layoff from 120 days to 180 days. From our review of the Bill, as the amendment applies to employees already on leave, a letter from the employer to all affected employees advising of the extended layoff should suffice. It is recommended that employers attach or include a copy of the relevant portion of Bill 24 which operates to extend the layoff period when providing this notice. 
  • A second question that often follows is whether the employer can extend the layoff and provide the notice of recall in the same letter, with the recall date being several weeks or months in the future, such as August 1 or September 1, 2020. A strict reading of section 64 of the Employment Standards Code suggests that is not permissible. 
  • Section 64 states: 
64(1) An employer may request an employee to return to work by providing the employee with a recall notice.
(2) A recall notice must
(a) be in writing,
(b) be served on the employee, and
(c) state that the employee must return to work within 7 days of the date the recall notice is served on the employee.
(3) If an employee fails to return to work within 7 days of being served with the recall notice, the employee is not entitled to termination notice or termination pay if the employer decides to terminate the employee's employment as a result of the employee's failure to return to work in accordance with the notice.
(4) Subsection (3) does not apply to an employee bound by a collective agreement containing recall rights for employees following a layoff.
  • To be in strict compliance with the legislation, an employer must provide formal written notice to the employee that he or she must return within 7 days. The employee has 7 days to return to work. As such, notice of more than 7 days does not appear to be permitted by the statute. 
There will be no blog on July 1 or July 3, 2020, but we will return on July 6, 2020. 

June 26, 2020

McLennan Ross Update for Friday

By McLennan Ross Labour & Employment Team
What we are seeing
  • Bill 24 (COVID-19 Pandemic Response Statutes Amendment Act 2020) passed a third and final reading yesterday in the Legislature. This legislation extends the period of temporary layoffs from 120 days to 180 days, and it is effective as of June 17, 2020. The new legislation still requires royal assent to be in force, and that should occur soon. 
  • On June 25, 2020, the Government of Canada announced additional financial support for students
  • Highlights from the announced support include:
    • The launch of the Canada Student Service Grant (CSSG) which will support post-secondary students and recent graduates as they volunteer to assist with their communities' COVID-19 response by providing a one-time payment between $1,000 and $5,000 based on the number of volunteer hours served. 
    • Investment of $186 million in the Student Work Placement Program to assist post-secondary students obtain paid work experience related to their field of study by funding an additional 20,000 job placements in high demand sectors.
    • Investment of $60 million in wage subsidies for employers to create 10,000 new job placements for young people between the ages of 15 and 30 through the Canada Summer Jobs program.

What we are hearing
  • The creation of a single health unit under Alberta Health Services (AHS) and the resulting centralization of the delivery of healthcare to Albertans was met with some resistance when it was implemented in 2008. There continues to be some criticism of AHS, especially with respect to its annual per capita costs to the public. However, AHS' centralized response to the COVID-19 pandemic and its ability to regulate public health directives has been a strong positive as compared to other provinces with multiple health units.
  • Although Alberta's implementation of its relaunch strategy has been in uniform, the public health guidance from AHS is issued to the entire province. That is not the case in other provinces. In Ontario, for example, neighbouring health units are implement different rules regarding such things as physical distancing and the use of masks. This is leaving some employers frustrated, as some customers are choosing which business to frequent based on whether they have to wear a mask.

What we are saying
  • We continue to see counsel for plaintiffs in wrongful dismissal claims suggest that the stagnant job market caused by the pandemic is a factor that works solely to the benefit of employees in determining their notice entitlement at common law. We have yet to see a judicial decision support that conclusion and we believe that this conclusion is flawed. 
  • An example of the logic used by plaintiff counsel is that the courts have on occasion commented that a depressed local economy can support a longer notice period. Indeed, one of the Bardal factors considered by courts in assessing a notice period at common law is the availability of replacement income for a person with similar characteristics as the employee (age, education, work experience, management responsibility, etc.). Plaintiff counsel, however, have suggested that the paused economy caused by COVID-19 will necessarily result in a longer notice period for the terminated employee in order to give that employee a reasonable opportunity to find replacement income. 
  • This logic is flawed in that it ties the time required for that specific employee to find a job, as opposed to a reasonable person with the employee's personal characteristics. A notice period is not an insurance policy, compensating a particular employee until he or she finds a job. Indeed, how long the employee actually takes to find a job is expressly not a Bardal factor and therefore should be irrelevant. Nevertheless, the evidence on that point may on occasion be referred to as evidence that substantiates the court's assessment of the appropriate notice period using the Bardal factors.
  • In our opinion, the courts will not foist the economic cost of a global pandemic solely on employers struggling to rebuild their businesses as the economy reopens. As long as the court agrees that the termination was done in good faith, the notice period for a terminated employee now should be no different than that employee's notice period in February 2020. Time will tell whether courts accept this logic, and employers should be prepared for either possibility.

June 24, 2020

McLennan Ross Update for Wednesday

By McLennan Ross Labour & Employment Team
What we are seeing
  • On May 27, 2020, we provided a brief synopsis of the continued operation of the Temporary Foreign Worker ("TFW") program during the COVID-19 pandemic. At the time, the Government of Canada had temporarily relaxed some requirements for employers seeking to bring in TFWs in the Agriculture, Food Processing, and Trucking industries.
  • The Federal Government has subsequently further updated certain aspects of the program. Due to higher unemployment rates resulting from COVID-19, recruitment and advertisement requirements have been updated, with recruitment efforts being required to take place in the current labour market to ensure Canadians and Permanent Residents are considered first for available jobs. This update applies to pending Labour Market Impact Assessments ("LIMA") received prior to June 15, 2020 and includes the following:
    • Any ads posted before March 15, 2020 may need to be re-posted for an additional two consecutive weeks.
    • When re-advertising, employers must also meet all the minimum recruitment requirements. 
  • However, as of June 10, 2020, the TFW program is prioritizing certain occupations considered "essential". The program is prioritizing and waiving minimum recruitment requirements for the following non-exhaustive list of occupations:
    • Agricultural service contractors, farm supervisors, and specialized livestock workers;
    • General farm workers;
    • Labourers in food, beverage and associated products processing;
    • Harvesting labourers;
    • Butchers, meat cutters, and fishmongers in retail and wholesale;
    • Butchers and meat cutters, poultry preparers and related workers in industrial settings; and
    • Nursery and greenhouse workers. 
  • Employers hiring a replacement worker under the Agriculture stream are not required to re-advertise the vacant position when submitting a LMIA application for the replacement worker. This applies only if the replacement worker is in the same Job Bank economic region and the same occupation as the ones stipulated in the previous positive LMIA. 
  • The program is prioritizing and not waiving the minimum recruitment requirements for other occupations such as registered nurses, specialist physicians, general practitioners and family physicians, pharmacists, light duty cleaners, and transport truck drivers. 
  • Agriculture businesses will have until June 30, 2020 to apply for the Mandatory Isolation Support for Temporary Foreign Workers Program, a program providing up to $1,500 per TFW to assist employers with incremental costs associated with the mandatory 14-day isolation period imposed under the Quarantine Act.
  • As a brief reminder, employers must always pay for the TFW's private health insurance. Coverage must begin from the time the TFW arrives in Canada until the worker is covered by the appropriate provincial/territorial health insurance plan. Under no circumstances can an employer recover the health insurance costs from the TFW. 
  • Separately, due to significant concerns regarding the recent deaths and ongoing safety of Mexican TFWs working at farms, Mexico and Canada have reached an agreement wherein Canada committed to increased farm inspections and further supports for Mexican officials and workers, including identifying and reporting unsafe working conditions. The requirements on employers are strict and subject to audits by Employment and Social Development Canada. If found in contravention, the employer is subject to strict penalties, including fines of up to $1 million and a ban from hiring TFWs in the future.

What we are hearing
  • On June 22, 2020, Ontario announced its approach to reopening schools for the 2020-2021 school year. Unfortunately, the approach is as non-specific as the current Alberta plan.
  • In both Alberta and Ontario, the governments are planning for one of three scenarios
    • In-school classes resume with near normal operations while still following public health measures and directions;
    • In-school classes partially resume with modified routines, smaller class sizes, cohorting and alternative day or week attendance; or
    •  Continued, although enhanced, at-home learning.
  • The takeaway for employers is that even if there is an ability for employees to safely return full-time to the workplace as of September, childcare issues will likely continue to impair the ability of certain employees to do so and no clarity will be forthcoming until August 2020.

What we are saying
  • Ontario announced it would be launching a new privacy-first exposure notification app within the next two weeks called COVID Alert, a voluntary download that will give people who test positive for COVID-19 the option of anonymously alerting all other app users who have been close contacts in the last 14 days.
  • Although Ontario is stating that COVID Alert is a fast, secure and privacy-protected way to notify users of potential exposure, that is will never collect personal data or GPS location data and the app leverages global best practices to protect privacy, similar promises were made about the ABTraceTogether app launched in Alberta in early May 2020, which assurances were quickly disputed by privacy experts. 
  • A question that arises is whether an employer can force its employees to download and enable either COVID Alert or ABTraceTogether as a condition of employment. Please see our discussion on this topic in our email alert "ABTraceTogether: Contact Tracing All in the Workplace".
  • Employers should be cautious, however, as if the app is not as secure as represented by the developers. A further question arises as to whether the employer, by requiring an employee to download and enable the app, would be liable to the employee for any loss suffered by the employee if a hacker using the app to secure and misuse the employee's personal information.
  • Any employer who is considering making it a condition of employment that its employees download and use the app should discuss the possible legal issues arising from such a direction with legal counsel.

June 22, 2020

McLennan Ross Update for Monday

By McLennan Ross Labour & Employment Team
What we are seeing
  • As with the Canada Emergency Response Benefit (CERB), the Federal Government announced that the Canada Emergency Wage Subsidy (CEWS) would be extended to the end of August 2020. Although of some assistance to employers, there have been many complaints about the effectiveness of the CEWS, such as: 
    • The comparatively late announcement of the subsidy amount of 75% of employee wages up to $847 per week;
    • The delay of a full month from the start of the pandemic in providing details of the program to employers coupled with the 6-week delay in unveiling the application process; 
    • The program requirement that employees who had been laid off or furloughed due to the delay in rolling out the program were only eligible if they were rehired and were paid their retroactive pay in order to meet the eligibility criteria for the claim period; and
    • The requirement to show a 30% reduction in revenues.
  • The Government had estimated it would pay out $73 billion in CEWS applications. To date it has paid out $13.3 billion. We hope the Government will realize the difficulties its current eligibility requirements are causing and streamline the process.

What we are hearing
  • The Court of Queen's Bench of Alberta took another step forward in its effort to implement procedures to allow actions to move forward. As of June 24, 2020, the Court will commence scheduling half-day Civil Special Justice and Masters Chambers applications remotely via WebEx. These hearings have largely proceeded in the same manner as previously, with the exception being that counsel cannot rely on any evidence or case authority that was not provided in advance of the application. In some ways, this could be a positive as it may reduce the number of adjournments, which used to occur in Chambers at the last minute when a party passed up a case or document not previously disclosed to opposing counsel despite the requirements under the Alberta Rules of Court.

What we are saying
  • Consistent with the above efforts of the Court of Queen's Bench to create ways to allow for litigation to move forward without the need for in-person attendance, a recent decision of the Court addressed the issue of Questioning or examination by video-conference when one party will not agree to proceed in that fashion. 
  • In Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta, 2020 ABQB 359 (CanLII), there had been an emergency injunction application heard after the declaration of the state of public health emergency in Alberta. The application had failed, but the Court directed the parties to "attempt to draw up the procedural roadmap for the reinstatement litigation". The parties were unable to do so, with the primary point of contention being whether Questioning on Affidavits should be deferred until the pandemic was over or whether they should proceed via video-conference. The main objection by one of the parties was that the process would be unwieldy, and as many of the applicants were over the age of 60, effectively managing the technology would be too difficult. 
  • The Court reviewed the 2010 changes to the Alberta Rules of Court and found that although there were recent decisions which contemplated the ability of parties to agree to conduct video-conference Questionings, there was to date no decision where the Court had directed a party to submit to such a procedure over its objection. Justice Lema did find a decision prior to the introduction of the new Rules in 2010 where the Court did direct completion of Questioning for Discovery via video conference. 
  • As such, and in light of the foundational Rules which direct the Court to augment the Rules as necessary to ensure the fair, just, and timely resolution of parties' claims, the Court determined it had the authority to direct the parties to proceed with Questioning on Affidavits by way of video conference and made such a direction. 
  • This decision is a clear indication that the Courts will not allow parties to sit on their hands and wait for things to return to normal. Counsel must embrace that the modernization of the litigation process has been accelerated by COVID-19 and a new way to practice is being created.

June 19, 2020

McLennan Ross Update for Friday

By McLennan Ross Labour & Employment Team
What we are seeing
  • As we just reported in our last blog, the Alberta Government introduced Bill 24 (COVID-19 Pandemic Response Statutes Amendment Act, 2020) on June 18, 2020. The bill proposes new amendments to legislation effective immediately that are deemed necessary as a result of the end of the public health state of emergency.
  • Important elements of Bill 24 relating to employers include:
    • Extending the temporary layoff period under the Employment Standards Code from120 days to 180 days, with the extension expressly applying to employees who are already on a layoff when the amendment was introduced;
    • Extending the unpaid job protected leave due to either infection, quarantine, or child or family care obligations arising from COVID-19 to August 2021; and
    • Increasing the number of children permitted in a cohort at a childcare facility from 10 to 20. This will provide employees who are being asked to return to work additional childcare options.

What we are hearing
  • Thus far, although discussion about whether masks should be mandatory when social distancing is not possible is ongoing, we have seen no indication that the local or provincial government intends to pass such a law any time soon. Thus far, the Chief Medical Officer for Alberta has been satisfied that the encouragement being given to Albertans to wear masks in certain situations will be sufficient, especially if infection and hospital rates stay stable.
  • Some businesses have implemented mandatory mask policies on their own. As a general rule, as business premises are private property, a policy to refuse service to anyone not wearing a mask is enforceable. However, business owners should be cognizant that if a person cannot wear a mask for health or religious reasons, refusing service may constitute discrimination under the Alberta Human Rights Act.
What we are saying
  • Questions are arising about the collection and use of customer information as businesses reopen in Alberta. This arises from attempts to avoid COVID-19 infections from occurring and to assist in contact tracing if an infection does occur. The Office of the Information and Privacy Commissioner of Alberta (OPIC) has recently provided guidance about considerations for businesses to keep in mind to ensure they comply with Alberta's Privacy Information Protection Act (PIPA).
  • Some key takeaways from the OPIC guidance include:
    • Advance warning that information is going to be collected should be provided in advance via the organization's website, social media, or posters on the door to the workplace;
    • Written or oral consent from the customer must generally be obtained;
    • Notice must be given about why the information is being collected, which can be written or oral;
    • Only information legitimately required by the business as part of its COVID-19 policy can be collected; 
    • Safeguards must be in place to ensure that the information collected is not disclosed, accidentally or otherwise, to other customers (such as through the use of one sign-in sheet for all customers) or employees who do not need the information; 
    • Any information collected cannot be used for any other purpose, such as adding the customer to a subscription list;
    • If information used in the past for a specific purpose, such as online booking, is going to be used as part of a COVID-19 policy, notice of this additional use must be provided;
    • The name of the organization's representative who can speak to the collection, usu, and storage of the information must be provided if requested;
    • Customers have the right to subsequently demand access to any of their personal information collected by the organization; and
    • The organization should consider how long it must retain the information for business or legal purposes. 
  • We recommend that legal counsel be contacted in advance to assist with or review an information collection strategy as part of a COVID-19 policy.

June 17, 2020

McLennan Ross Update for Wednesday

By McLennan Ross Labour & Employment Team
What we are seeing
  • The Federal Government announced that the Canadian Emergency Response Benefit (CERB) is being extended by two more months. Although the Government is attempting to encourage people to look for jobs and to go back to work when possible to do so, it stated that it wanted to ensure the financial safety net of the CERB was not removed too early. The government stated that it will strengthen the attestation recipients must complete stating that they are actively seeking work. It will be necessary to monitor if they continuation of the CERB results in Alberta employers reopening their businesses and finding a shortage of available labour despite the unemployment rate of over 15%.
  • The Alberta Government introduced Bill 24 (COVID-19 Pandemic Response Statutes Amendment Act, 2020) today. Among other things, this legislation extends the temporary layoff period from 120 days to 180 days. Though this legislation has just been introduced, and still must be passed, it will be effective today. 
  • Alberta's state of public health emergency, which had been in place since early March, lapsed on June 15, 2020. The declaration of a state of public health emergency under the Alberta Health Act permitted the Alberta Chief Medical Officer to issue a number of public health orders to be followed by Albertans to respond to the emergency. The declaration also granted the Government of Alberta the power to suspend, modify, or temporarily replace the application or operation of all or part of an enactment. The Government used this power to pass Ministerial Orders that modified such legislation as the Employment Standards Code and Regulations.
  • The Lapsing of the state of public health emergency does not result in the termination of the public health orders or the Ministerial Orders. The public health orders expressly state that they will remain in place until rescinded by the Chief Medical Officer. The power to grant the Ministerial Orders under the Alberta Health Act expressly allows the Orders to continue in effect for 60 days after the expiry of the state of public health emergency. Most of the Ministerial Orders state that they will remain in effect (unless extended by further Order) until the earlier of August 14, 2020 or 60 days from the date of the lapsing of the state of public health emergency unless expressly terminated earlier by the Government of Alberta.

What we are hearing
  • British Columbia has been slightly ahead of Alberta in the reopening of its economy and is slowly moving toward Stage 3 of its plan. It may be a good indication of what Alberta will experience as it moves through Stage 2 of its own strategy.
  • Key information from B.C. includes:
    • The number of new cases has stayed static for the past 10 days and has remained under 20 per day. Compare this with Alberta, which is still seeing new cases between 30 and 50 per day, although it has recently dropped to around 20; 
    • There have been no cases of COVID-19 connected to schools reopening on June 1, 2020;
    • Group gatherings remain limited to a maximum of 50 people with room for physical distancing, and this looks to remain a reality in the months to come; and
    • The next phase could be in late June or July, but will be entirely dependent on the number of new cases at that time.

What we are saying
  • With the widespread impact of the pandemic on Alberta businesses, historically unusual requests for changes to how business has been conducted may now seem understandable. This state of flux appears to have created a situation where cyber criminals are attempting to benefit. 
  • We have seen a proliferation of cyber fraud where criminals have hacked the email system of a supplier of goods or services. The hacker then mirrors an existing and legitimate email account and starts to send emails to clients advising that due to some issue, the company has had to change its banking information and that all future payments should be sent to a new bank account, which belongs to the hacker. The hacker also sets up a rule within the email account such that all replies to the fraudulent emails sent out by the hacker will be automatically be forwarded to the hacker and deleted from the legitimate email account. 
  • In some instances, because the email is coming from a legitimate email account, the request to direct payment to the hacker's bank account is successful, causing a loss. 
  • Businesses should be aware of this cyber fraud and direct employees to verify via telephone any request to change banking details. Businesses should also consult with their insurance brokers to discuss this and other new types of cyber fraud to ensure that they know the extent of existing coverage. To date, there is no case that allocates liability for a loss such as the above between the supplier whose email account was hacked and the customer who did not verify the change in banking information. 
  • If you require assistance in determining the extent an existing policy provides coverage against cyber security incidents or have questions regarding the sufficiency of your policy more generally, please contact someone in the McLennan Ross LLP Insurance and Risk Management Group.

June 15, 2020

McLennan Ross Update for Monday

By McLennan Ross Labour & Employment Team
What we are seeing
  • Although the general trend in Alberta of COVID-19 cases continues to be very positive, Alberta's Chief Medical Officer noted that the largest cohort with an increase in infections is people between the ages of 20 and 29. This may be due to processing, but likely also has some connection with this group being more likely to include front-line workers in the service industry or other similar industries with client facing positions. Likely, this group is also more social and perhaps willing to push the envelope on social distancing. 
  • In order for the launch of Stage 2 to be successful, Alberta's Chief Medical Officer noted that it is important Albertans continue to heed public health measures and directions, including social distancing. There appear to be inconsistencies in how this is supposed to be applied in different situations.

What we are hearing
  • The Government of Alberta has been continuing to send out guidance documents to help prepare businesses for their reopening following the implementation of Stage 2 of Alberta's relaunch strategy. With the move to Stage 2 being moved up by one week, the government website lacked a guidance document for many of the listed businesses and sectors that were reopening. That shortfall has been largely remedied with guidance documents now provided for many new areas, such as office buildings, public rallies, seniors centres and senior-serving organizations, and swimming pools and spray parks. 
  • We are already anticipating the potential of litigation based on an allegation that someone contracted COVID-19 from attending a place of business. As we have stated previously, a fundamental part of any defence to such a claim is being able to objectively show knowledge of, and compliance with, the applicable guidance documents for the business in question issued by the province.

What we are saying
  • Many employees understandably cancelled scheduled vacations once the state of public health emergency was declared. Similarly, those employees who continued to work have likely not taken vacation time either.
  • Currently, non-essential domestic travel is still not recommended. The border with the United States is essentially closed, and anyone returning to Canada after travelling internationally must quarantine for 14 days. Even those vacation destinations that can be reached by car either remain closed or have limited capacity. 
  • As such, many employees may continue to defer any vacation time and wait until later before using up accrued vacation entitlements. This may place a burden on employers who will be trying to balance many employees wanting to take vacation at the same time with business hopefully returning to normal and a desire to replace revenue lost in the second and third quarters. 
  • Under the Alberta Employment Standards Code
    • Employees employed for less than 6 completed years are entitled to 2 vacation weeks per year and after 6 completed years of service to 3 vacation weeks. Many employment agreements grant employees more vacation time than this statutory minimum.
    • Employees accumulate vacation time in one year and then are expected to use that vacation time in the next year. However, the employer and employee can agree to permit the employee to use the vacation time in the year in which it is accrued. 
    • It is up to the employer and the employee to agree on mutually satisfactory vacation time. If they cannot come to an agreement, section 38 of the Code gives the employer the ability to impose dates on the employee as long as the employee is provided with at least 2 weeks' written notice. Although as a matter of practice it happens often, conceptually the Code does not allow employees to carry over unused vacation time in respect to the minimum vacation entitlement. 
  • An employer faced with a situation where multiple employees are refusing to use their vacation time does have some options, but it is important to note that technically, the options only related to vacation time accrued in 2019 (and perhaps earlier). Forcing employees to take vacation time will depend on employer policies. Some options include: 
    • Using section 30 of the Code, create a schedule for when employees are to use vacation time. This schedule would allow the employer to ensure that each employee uses his or her 2019 vacation time while at the same time allowing the employer to be confident that it will always have enough staff in place. The legislation does not give an employee any right to dispute a vacation schedule imposed with sufficient notice;
    • Provide notice to all employees that they are not required to take their statutory vacation entitlement either in the year accrued or in the following year failing which the vacation time will be scheduled for the employee using section 38 of the Code. Employees would also be advised of the limited allotment of vacation time available for use and that the employer will be forced to refuse vacation requests if they result in less than full coverage; or
    • Offer an incentive, whether additional paid time off or some other enticement, to employees who take vacation time over the next 3 to 6 months. 
  • Please note that the options available to employer do not include a "use it or lose it" vacation policy where any unused vacation time relating to the minimum vacation entitlement under the Code is lost. Although it can happen in practice, there are compliance issues under the Employment Standards Code. In Ontario if an employer and employee agree that the employee was prevented from taking vacation time and the employee wants the cash value, the employer and employee can enter into an agreement to that effect. This agreement must then be submitted to the Ontario Director of Employment Standards for approval. Alberta does not have the same provision in its employment standards legislation as Ontario, however, Albertan employers can have a use it or lose it policy in respect to any vacation entitlement beyond the minimum requirements of the Code.