March 31, 2020

McLennan Ross Update for Tuesday

By McLennan Ross Labour and Employment Team

What we are seeing
  • As we mentioned in our blog yesterday, the Government of Canada announced on March 27, 2020 that it was increasing its small business wage subsidy from 10 percent to 75 per cent for qualifying businesses for up to 3 months, retroactive to March 15, 2020. The Government promised that more details on eligibility criteria would be announced prior to the end of March. Although we are still waiting for a formal press release, Prime Minster Trudeau provided some additional details during his press briefing on March 30, 2020:
    • The subsidy will be available for all business irrespective of size;
    • In order to qualify, a company must experience a decrease in revenues of at least 30%;
    • The Government will cover up to 75% of a salary on the first $58,700, which could mean payments of up to $847 a week. 
    • The Government will encourage businesses to top up their employees’ wages with the remaining 25% of their salaries.
  • We will be interested to see the guidance from the Government regarding how to calculate the 30% decrease in revenue, especially for businesses whose requests for goods or services are down dramatically but revenue realization generally occurs more than 30 to 60 days after completing a job order. 
  • We are also waiting to see if the 10% wage subsidy program, which was different in terms of quantum of benefit, but also in implementation, effective date, and the businesses which qualify, is withdrawn or if it is still available for companies which do not meet the 30% decrease in revenue requirement, either immediately or at all.

What we are hearing
  • There continue to be temporary changes made to Employment Standards legislation across the country. For example, British Columbia, Ontario, Saskatchewan, and Alberta all introduced a two-week job-protected leave if an employee had to self-isolate or was caring for a dependent required to self-isolate. Manitoba very recently announced a temporary exception to its Employment Standards regulations to give employers more time to recall employees laid off as a result of COVID-19. Under its existing Employment Standards legislation, employees who have been laid off for 8 or more weeks in a 16-week period were deemed to be terminated and entitled to wages in lieu of notice. The Province introduced temporary amendments that would ensure any period of layoff occurring after March 1, 2020 would not be counted toward the period after which a temporary layoff would become a permanent termination. We expect the Government of Alberta will similarly extend the layoff period before a deemed termination occurs.
  • The Chief Medical Officer has changed one of her instructions about people who are quarantined being allowed to go outside. While this was previously allowed, people in mandatory self-isolation are now prohibited from leaving their homes even to walk in their neighbourhood. Such people can get fresh air in their backyard, as long as they stay on private property. People who live in an apartment building or high-rise must stay inside and cannot use the elevators or stairwells to go outside. If their balcony is private and at least 2 meters away from the closest neighbour's, they may go outside on the balcony.

What we are saying
  • There is some uncertainty as to whether parties continue to have the obligation to move court actions forward despite court access being limited to urgent or emergency matters. The Court has suspended all “filing deadlines” found in the Alberta Rules of Court. Whether this suspension applies to deadlines which do not involve the filing of documents is not clear. For example, the Rules require a plaintiff to serve an Affidavit of Records within three months of receipt of a filed Statement of Defence, with a defendant’s Affidavit of Records due two months after receipt of the plaintiff’s Affidavit of Records. The Affidavit of Records is not filed before it is served. As such, it is not clear whether the direction of the Court suspending filing deadlines applies to service of an unfiled Statement of Defence. There is a penalty imposed on any party which does not meet its deadline for service of the Affidavit of Records; however, the Rules do say that the penalty will not be assessed if the party has “sufficient cause” for not meeting the deadline. It is probably that the Court will find a state of emergency due to a pandemic qualifies as sufficient cause.
  • Even if there is no obligation of the parties to move litigation forward, there may be practical reasons to do so. There will inevitably be a backlog of applications and appearances once the courts reopen and matters which were previously adjourned are rescheduled. This backlog will only exacerbate the demand on judicial resources already stretched thin prior to the pandemic. There may also be no more optimal time to focus on the issues in litigation while other business demands are lessened. Finally, claimants may be more willing to compromise and accept a reduced but certain amount as opposed to holding out for a higher amount, which will require waiting for the claim to make its even longer way through the court process to trial.

March 30, 2020

McLennan Ross Update for Monday

By McLennan Ross Labour and Employment Team

What we are seeing 
  • Late in the day on Friday, March 27, 2020, the Government of Canada announced that it was increasing its small business wage subsidy from 10% to 75% for qualifying businesses for up to 3 months, retroactive to March 15, 2020. The Government promised that more details on eligibility criteria would be announced prior to the end of March. Under the previous program, businesses were eligible “if their taxable capital employed in Canada for the preceding taxation year, calculated on an associated group basis, was less than $15 million.” The subsidy was to be provided through employers reducing their current remittance of federal, provincial, or territorial income tax to be sent to the CRA by the amount of the subsidy. It remains to be seen if these details will remain the same or be adjusted now that the subsidy is significantly more than the 10% previously offered.

What we are hearing
  • On March 27, 2020, the Court of Queen’s Bench of Alberta issued further restrictions on courthouse access across the Province. See these updated restrictions here.
  • These new restrictions are in addition to the suspension of all hearings other than emergency or urgent matters which was implemented on March 20, 2020, with requests for such emergency or urgent hearings submitted online for consideration before a hearing date is granted.
  • The Alberta Court of Appeal conducted its first wholly electronic appeal hearing today.  McLennan Ross’ own Gerhard Seifner was one of the lawyers involved, appearing in the traditional lawyer’s gown, but online. The hearing proceeded very smoothly.  

What we are saying
  • With the ever changing list of support programs being provided by the Governments of Alberta and Canada to struggling employers, and with the details of those programs still often either undefined or untried, employers are continually having to re-evaluate the best options for surviving the economic impact of the pandemic and being ready to operate once the state of emergency is lifted. Whether to temporarily layoff, mass terminate, job share or rely upon wage subsidies is a complex decision with the best strategy for one business not guaranteed to be the same for another business. Considerations include:
    • The number of employees affected;
    • The possible statutory and common law obligations owed to any terminated employees;
    • The ability to attract quality candidates once demand for employees re-occurs;
    • The need to continue to operate as an essential service or workplace during the pandemic; and
    • The ability to be compensated by customers for the services rendered.
  • For these reasons, we recommend discussion with the appropriate professionals, including experienced employment law counsel, to best understand the implications of each option before making any significant workforce decisions.

March 27, 2020

McLennan Ross Update for Friday

By McLennan Ross Labour and Employment Team

What we are seeing 
  • Since the commencement of the COVID-19 pandemic, the Canadian Government has announced a number of Employment Insurance changes as well as two new programs meant to assist those who don’t qualify for EI. Those two programs were streamlined on Wednesday afternoon into a single benefit — the Canada Emergency Response Benefit (CERB). The Government’s news release, link available here, is sparse on CERB details, but it appears that the benefit will be administered as follows:
    • Anyone who has made at least $5,000 in the previous 12 months or the previous tax year and who has lost their income for any reason due to COVID-19 is eligible for the CERB.
    • The purpose is to ensure that no one who had income and has had that income interrupted is going to go without having access to any funds. As for what counts as income loss due to the COVID-19 pandemic, it appears to be intended to cover most situations, such as if employees have been laid off either directly or indirectly as a result of the current economic situation, if employees are sick, if a child is home from school and an employee must be home to care for them, if employees are caring for a sick family member, if employees feel they must self-isolate due to risk factors, if employees are experiencing mental-health issues as a result of the pandemic, and so on.
    • People can keep their jobs and still be eligible for the CERB, but they must not be receiving payment, which indicates that the CERB cannot be supplemented by the employer. Despite that limitation, the intention appears to be that employers and employees can maintain a connection, and employees can receive the CERB for the next 4 months and then restart their employment when the economy moves back towards normalcy.
    • It appears that this benefit will be in addition to existing benefits under the EI program; however, applicants cannot receive both the CERB and EI benefits at the same time.
    • All those eligible for the CERB, regardless of how much they made before, will get $2,000 per month, paid bi-weekly for a period of up to 16 weeks. The eligibility period ends on October 3. The earliest people can expect to see the first benefit cheque arrive is around April 9 and the latest is around April 20.
    • Canadians will be able to apply for the CERB through a Service Canada online portal at a link that will be published widely when the site goes live, as well as over the phone or in person, where available.

What we are hearing 
  • The Government of Saskatchewan has made a determination of businesses that are essential and non-essential for the purposes of public operations. The list of Critical Public Services and Allowable Business Services is very broad (e.g., it includes all employees in a variety of fields, such as all production, processing and supply chains of the energy and oil and gas sectors). Non-essential businesses are not prevented from operating, but they are required to close public operations as of March 26 (they cannot offer “public-facing services”).
  • Here is a link to the list of Critical Public Services and Allowable Business Services in Saskatchewan.
  • The Government of Saskatchewan also announced further limitations on the size of public and private gatherings to a maximum of 10 people in one room. Exceptions are provided where two-metre distancing between people can be maintained, such as: workplaces and meeting settings where people are distributed into multiple rooms or buildings; and retail locations deemed essential.

What we are saying 
  • Many employers have had to issue layoff notices to a large number of employees in the past two weeks. If the employer does not recall the employees and proceeds to termination, this gives rise to a group termination notice requirement set out in section 137 of the Employment Standards Code that states that if an employer is intending to terminate the employment of 50 or more employees at a single location within a 4-week period, the employer must give the Minister of Labour and the affected employees (and any union) the following amount of written notice according to the number of employees affected:
    • 8 weeks - 50 or more employees but less than 100
    • 12 weeks - 100 or more employees but less than 300
    • 16 weeks - 300 or more employees
  • Employers are rightfully concerned about these notice requirements and what financial liability they may create. We are waiting to see if there will be any relaxation of this requirement by the Government of Alberta. Absent such relaxation, there may be applicable exemptions under the Code and the Employment Standards Regulation which can potentially provide relief for employers from this notice requirement.

March 26, 2020

McLennan Ross Update for Thursday

By McLennan Ross Labour and Employment Team

What we are seeing 
  • It appears that the Canadian Government will be announcing financial support for the oil and gas sector this week. It is unclear what the support will entail and if it will be limited to loan interest relief and loan guarantees or will be something more substantive. 
  • The Government of Alberta has set up a website to provide information regarding its financial support for employees experiencing a loss of income resulting from self-isolation due to COVID-19. Click here. In order to be eligible, an applicant must have experienced total or significant loss of income and is not receiving compensation from any other source because the employee:
      • has been diagnosed with COVID-19;
      • has been directed by health authorities (Health Link 811) to self-isolate; or
      • is the sole caregiver of a dependent who is in self-isolation.
    • Those not eligible for the program include those employees who:
      • were not working immediately before being advised to self-isolate;
      • can work from home;
      • are not experiencing a significant loss of income as a result of self-isolation;
      • are currently collecting other forms of income support or employer benefits while self-isolated, such as: workplace sick leave benefits or federal Employment Insurance (EI) benefits;
      • are staying home to care for a dependent who is home for a reason other than self-isolation; or
      • reside outside of Alberta.
    • In the application questionnaire, “significant” loss of income is defined as more than 50%.

What we are hearing 
  • The Government of Alberta also announced that it would begin enforcing the Public Health Order due to non-compliance. Fines for violating an order can now cost as much as $1,000 per offence while courts will also be able to levy fines of up to $100,000 for a first offence and up to $500,000 for a subsequent offence for “more serious violations.” It appears that the Government is focused on individuals who are not following the Order by congregating in public places such as parks and not on businesses, either generally or those in the service industry that are subject to the prohibition from operating (such as bars and nightclubs) or are limited to 50% capacity or a maximum of 50 people.

What we are saying 
  • We are being asked regularly what an employer is to do with accumulated but unused vacation pay when temporarily laying off an employee under sections 62 - 64 of the Employment Standards Code. As stated earlier in our FAQ for Employers, Sections 62-64 of the Employment Standards Code permit employers to temporarily lay off employees. If an employee is laid off for 60 days in a 120-day period, the employee will be deemed terminated, and termination pay will be owing under the Employment Standards Code. Sections 62–64 do not require that the employee’s accumulated and unused vacation pay must be immediately paid to the employee in such a layoff situation. Section 38 of the Code allows an employer to require an employee to take vacation at a certain time provided the employer provides at least 2 weeks’ advance notice of such a direction; however, that does not apply while an employee is laid off. A consideration for the employee is that the receipt of vacation pay will likely affect the employee’s application for Employment Insurance benefits in that the commencement of the employee’s layoff period may be delayed by the value of the vacation time paid to the employee. Some employees may prefer to take the vacation pay up front (at 100% of normal wages) rather than Employment Insurance at a reduced rate, while other may prefer to continue holding the vacation pay so that it can be taken at a later date, such as when the employee returns to work or at the time of termination, if the employee is not recalled. An employer’s expected future solvency may also be a consideration for the employee. Although it is not necessary, we generally recommend providing the option to employees and allowing them to make the determination regarding the timing of receipt of the unused vacation pay.

March 25, 2020

McLennan Ross Update for Wednesday

By McLennan Ross Labour and Employment Team

What we are seeing 
  • As stated in our blog yesterday, Ontario and Quebec implemented a lock-down of non-essential workplaces, but with a broad list of permitted “essential” businesses. So far, no other provinces have taken the same action. According to news reports, the Alberta government could soon take similar action, with the list of what workplaces will be declared essential is currently being developed by a cross-ministry team with officials from health, labour, energy and municipal affairs under the guidance of the Provincial Operations Centre. We discuss the impact of such an order on employment relationships below.

 What we are hearing
  • The Government has not determined that it will need to limit business activity to “essential services,” but it is taking steps to prepare for that possibility. We hope that will not be necessary. We expect that if an essential services order is given, the list of permitted “essential” businesses will be broad.
  • Employers are feeling the stress of continuing to operate and thereby provide income to employees, but then being criticized for allowing employees to work when they do not subjectively feel safe. Employers with large workforces working at one location are then further conflicted by privacy considerations arising from the implementation of testing prior to employees being allowed on the worksite. If the employer has a large number of employees arriving at the same time to start a shift, and the employer has decided to take the temperature for each employee and not allow those employees with an elevated temperature to work that day, logistically how can the employer be expected by its employees to both (a) conduct the test in a manner that ensures accurate results and ensures that no one who may have the COVID-19 virus is allowed to work yet (b) respect the privacy rights of the employee testing negatively when that employee is publicly prevented from entering the worksite. If employers are considering implementing taking temperatures, we recommend that it should be only one part of a larger overall program to deal with COVID-19 safety concerns in the workplace, with different elements. In addition, the employer must consider how best to protect the privacy of all involved and implement reasonable measures to do so. We can assist you if you are looking at developing such programs.

 What we are saying
  •  As stated in our blog yesterday, Ontario and Quebec implemented a lock-down of non-essential workplaces. Alberta is considering the possible need to do the same. While the Government of Alberta is mindful of not unnecessarily shutting down businesses (and not hampering critical services by restraining the businesses that supply them), now is the time to communicate to MLAs, Government Departments, and Ministers your views about any essential services issues and why your business should be included on any list of essential activities.
  • Should Alberta indeed follow Ontario and Quebec’s lead, we have been asked by clients whether such a declaration would allow employers to now claim frustration of contract, end employment relationships, and not be legally obligated to provide notice or pay in lieu of notice to their former employees:
    • Section 55(2)(h) of the Employment Standards Code provides that termination notice is not required if the contract of employment is or has become impossible for the employer to perform by reason of unforeseeable or unpreventable causes beyond the control of the employer. If the employer’s business is one that cannot be performed remotely, such as a restaurant, store or other similar business, a direction to lock-down the workplace for an indefinite period of time would appear to qualify.
    • The Employment Standards Code explicitly states that nothing in it affects any civil remedy of an employee. Reasonable notice or pay in lieu of notice at common law may still be available to employees terminated under section 55(2)(h) unless a court finds that the employment relationship has been “frustrated” due to it becoming impossible to perform due to circumstances beyond the control of either the employer or the employee. Whereas a business making the decision to cull its workforce to endure economic difficulties due to the pandemic was unlikely to qualify as frustration, it becomes much more arguable if that business is forced to cease operations, either temporarily or permanently, due to a governmental order prohibiting that business from opening.
    • Although difficult to predict at this time as we are still in early days of this pandemic, we can foresee the courts applying a superficial analysis: if a business ceases operations and never reopens, there was frustration of contract; if the business reopens and starts rehiring employees, a frustration argument will not be available in response to wrongful dismissal claims advanced by former employees who are not rehired.
    • Frustration of contract is a fact-specific assessment that will depend on the circumstances of each case.
  • Some clients are content to have any outstanding litigation paused while the pandemic and resulting state of emergency limits or eliminates court resources. Others, while being mindful of not being perceived as trying to take advantage of the situation, are exploring settlement as the indefinite delay in matters being set for trial could lead parties to be more reasonable in negotiations in order to achieve a resolution of a dispute. A third option is to pursue resolution through private arbitration, even if already started as traditional litigation. A number of arbitrators, including Jim Lebo, Q.C. and Peter Major, Q.C. from McLennan Ross LLP, are still hearing matters and are doing so remotely or based on written argument alone. Private arbitrators can also be retained on a limited basis to resolve interim procedural issues or discrete issues in existing court actions to allow the litigation to continue to move forward but preserve the parties’ desire for the claim to be ultimately resolved by way of a traditional trial.

March 24, 2020

McLennan Ross Update for Tuesday

By McLennan Ross Labour and Employment Team

What we are seeing
  • The Ontario and Quebec Governments declared a lock-down on all non-essential workplaces in those provinces on March 23, 2020, to take effect at 11:59 PM on March 24, 2020. These declarations were first made without providing information regarding what businesses would be considered essential workplaces, leaving some employers scrambling to determine or confirm whether their operations would or would not be continuing on March 25, 2020. Those lists were subsequently provided late in the day on March 23, 2020. For employers with operations in multiple jurisdictions, it may prove difficult to manage their businesses if these lists differ from province to province. It appears that the Federal Government has obtained a legal opinion that this issue falls within provincial jurisdiction and it is therefore not becoming involved. 
    • In Ontario, both the LCBO and lawyers (and many other businesses) were declared essential workplaces. A complete list is available here
    • Here is a link to the Quebec businesses allowed to operate as “essential”.
    • We hope it will not be necessary to impose similar restrictions in Alberta, but it would be useful to review the restrictions in Ontario and Quebec just in case.
  • Thus far, Alberta has taken a measured approach in deciding whether it is necessary to lock-down non-essential workplaces. It is questionable whether such a step is necessary at this time in Alberta as it may only amplify the economic damage already being suffered by businesses. In addition, non-essential businesses help essential businesses to function. Shutting down non-essential businesses can have unintended consequences.
  • The Federal Government appears to be backing away from an unprecedented attempt to pass legislation allowing the minority Liberal government to tax and spend without parliamentary approval. After objection from the Conservative opposition, the Liberals appear to be revising the draft legislation to address the Conservative’s concerns.

What we are hearing
  • There have been some refusals to work by nurses based on health concerns related to demands for n95 face masks. Alberta is providing nurses with protective gear in line with the same standards as other provinces, the Canada Health Agency, and the World Health Organization. Given the shortage of supplies, it is important that protective equipment is available when truly needed. This example highlights some of the issues arising in respect to Occupational Health and Safety. Reasonable precautions must be considered in context.
  • The Alberta Government is adamant about its intention to pursue and prosecute those attempting to defraud or unfairly profit from the pandemic, as evidenced by Premier Kenney’s comments about there being a “special place in hell” for scammers and people seeking to exploit seniors and others.
  • The Alberta Consumer Protection Act prevents suppliers from grossly raising prices with no explanation beyond what is reasonable for goods that are readily available, but its application is limited to commercial sales and does not explicitly cover private sales. There has been little discussion of the role that high prices play in curbing the hoarding of goods and supplies and encouraging the addition of new supply.
  • The Alberta courts continue to alter their processes to maintain core court operations. 
    • All levels of court provided a summary of the categories of matters which would continue to be heard during the state of emergency. Link is here.  
    • The Court of Queen’s Bench has introduced an enhanced email filing system for court documents in all Q.B. judicial centres. Link is here.

What we are saying
  • An issue which may arise is whether, in issuing any lock-down order, the Alberta Government can override the terms of a collective agreement. Section 52.6 of the Public Health Act does not appear to give the Alberta Government this power. Division 18 of the Labour Relations Code applies to emergencies in a collective bargaining dispute; not to the operation of a unionized business in a public health emergency. In Ontario, a temporary order with respect to health care resources was issued under the Ontario Emergency Management and Civil Protection Act, allowing, among other things, for the redeployment of healthcare staff and the assignment of work without reference to, and even in contravention of, an existing collective agreement. The Ontario legislation appears more robust and detailed than the Alberta Public Health Act, but we are of the view that a similar Order could be granted in Alberta if necessary, as long as a state of emergency under the Public Health Act is in effect.
  • Private sector employers are working to address new operational realities and will be obliged to comply with any government orders and manage their collective agreement obligations at the same time. Employers and unions need to consider potential amendments to collective agreement provisions or relaxation of agreement obligations in order to effectively deal with altered circumstances brought about by COVID-19.

March 23, 2020

McLennan Ross Update for Monday

By McLennan Ross Labour and Employment Team

What we are seeing
  • The Federal Government has issued details to business owners on the temporary wage subsidy, a three-month measure that will allow eligible employers to reduce the amount of payroll deductions required to be remitted to the CRA. The subsidy is equal to 10% of the remuneration paid to employees between March 18, 2020, and June 20, 2020, up to $1,375 per employee and to a maximum of $25,000 total per employer. Eligible business are non-profit organizations, registered charities and Canadian-controlled private corporations with less than $15 million in taxable capital employed in Canada. See the Government’s explanation of the program here.

What we are hearing
  • The Alberta Privacy Commissioner has put out a bulletin confirming that compliance with the privacy legislation during the pandemic is still required by employers, although what constitutes reasonable safeguards of personal information may be different than in normal circumstances. Click here for the bulletin.
  • With respect to disclosure of an employee’s name who has tested positive for COVID-19, we recommend that employers not widely disclose the identity of that person unless required to ensure a safe workplace, which will differ depending upon the situation. Identifying should be the last resort and that all efforts should be made to protect the individual’s identity. 
    • An employer may have to disclose the name to other employees who worked in close proximity to the person who tested positive or who may have been in areas where the employee was in order to determine whether those employees are at risk. 
    • If there are others in the workplace who would not have encountered that individual, then no need to disclose to those employees arises. For example, if someone on a different floor of a large organization tested positive, there may be no need to disclose the specific identity to the whole organization – an inquiry can be made regarding whether employees have been to the floor where the employee worked and determine risk without identifying the individual. 
    • There may be other workplaces where interaction is so commonplace that the employer will have no choice but to identify. 
    • If the identify of a person who tested positive for the virus is disclosed, anyone receiving that information must be advised to keep the identity confidential. 

What we are saying
  • We were contacted by many employers over the weekend for our comments on the article written by Howard Levitt regarding temporary layoffs. Mr. Levitt’s article, although a bit sensationalist at times, is not inconsistent with the advice we have given employers to date, just written from a different perspective:  
    • Employer’s do have the obligation to provide a safe workplace for its employees and may be held responsible if they do not take appropriate steps to safeguard its staff, but it is a bit extreme to state that employers are “exposed to potential massive litigation”. Again, to protect against such claims, we recommend following our Pandemic Planning Checklist found here.
    • If the employee consents to the layoff, accepting that the employer is doing its best and does wish to maintain the employment relationship, it is unlikely that the employee will claim constructive dismissal. Moreover, the employee does run the risk, as Mr. Levitt alludes to, that a court finds these circumstances so novel that, in these discrete circumstances when layoffs are due to factors beyond any employer’s control, it is an implied part of any employment relationship that an employer can rely upon the temporary layoff provisions found in employment standards legislation to get through the crisis. See question and answer no. 3 on the FAQ’s we posted on March 16 here.
    • Absent a termination clause in the employee’s employment agreement, an employee’s common law notice entitlement does fall somewhere between the statutory minimum and the accepted maximum (except in the most extreme of circumstances) of 24 months, but it is generally only the employees with exceptionally long tenure and who are quite old who would have a viable claim for 24 months’ notice. The overwhelming majority of employees would not be able to credibly claim a common law notice entitlement of 24 months’ or anything close to it.
    • Finally, and as alluded to in the article, if the temporary layoff is indeed temporary and the employee is offered his or her job back, the employee would be expected in law to accept the recall, reducing his or her damages claim to the amount not paid to the employee during the layoff. If the employee applied for and received Employment Insurance benefits, he or she would have to repay those benefits out of any damages claim.

March 20, 2020

McLennan Ross Update for Friday

By McLennan Ross Labour and Employment Team

What we are seeing
  • As mentioned yesterday, both the federal and the Alberta governments announced measures to provide financial support to businesses during this crisis.  
    • Our summary of the announcement from the Canadian government can be found here.
    • Our summary of the relief offered to business can be found here.
    • Our summary of the employee relief measures can be found here.

What we are hearing
  • The Alberta Government has been slowly implementing changes to how matters before the Courts or tribunals will be heard moving forward, with most actual hearings and applications being postponed indefinitely yet some interim procedural matters still attempting to be heard by telephone. 
  • We have not seen any indication that the limitation periods for advancing claims under employment-related statutes (such as the Alberta Human Rights Act or the Employment Standards Code) or to sue in the Courts (which time periods to sue are set out in the Limitations Act) have or will be extended. It therefore appears that any limitation period currently still applies, and parties should proceed on that assumption until expressly advised otherwise by the government.
  • McLennan Ross LLP has been advised that some courts, tribunals and government offices such as the Land Titles Office are only accepting emergency filings at the counter in order to limit their staff’s contact with the public and maintain social distancing. All courts appear to still accept for filing claims and other documents with either upcoming limitation dates or other court mandated deadlines. We have also been informed that it is best to call the clerk of the applicable court to find out the latest information as procedures keep evolving and the court websites are not being regularly updated.  

What we are saying
  • Employers are required to issue a Record of Employment not only when the employment of an employee ends but also when an employee leaves because of pregnancy, injury, illness, retirement, layoff, leave without pay, dismissal, adoption, or compassionate care leave. McLennan Ross LLP has provided some guidance in completing ROEs during this crisis here.
  • A question already arising is how the pandemic will affect common law notice entitlement for employees terminated either prior to or during this crisis and whose notice period overlaps with the time period of the state of emergency. Our answer is that we do not know for sure how it will be a factor but it certainly will be argued: 
    • One factor that is expressly considered in determining notice entitlement at common law is “the availability of similar employment”, which could be largely non-existent in some sectors for months. 
    • Other employment positions, such as ones that are project driven, are inherently volatile, with the expectation of high earnings for short periods of time, followed by periods of inactivity. 
    • Further, there has been some commentary in the past from the courts that it would be “unrealistic (and unfair) to burden an employer with the same notice period in a depressed economy as it would be in at a time of prosperity.” (see Toole v Northern Blizzard Resources Inc, 2017 ABQB 760). 
  • As with most things, our advice is fact specific with each case evaluated in its own particular circumstance but it is fair to say that the question is a live one in assessing common law notice entitlements moving forward.

March 19, 2020

McLennan Ross Update for Thursday

By McLennan Ross Labour & Employment Team

What we are seeing 

  • Both the federal and the Alberta governments announced measures to provide financial support to businesses during this crisis.  
    • Our summary of the announcement from the Canadian government can be found here
    • The Alberta government’s support package is primarily the delaying of  payment of corporate income tax balances and installment payments and clarifying that employees on leave due to either having COVID-19 or being required to self-quarantine will be compensated during the leave through Employment Insurance benefits and the Emergency Isolation Support program. This is good news to employers who were concerned about having to provide paid leave to such employees. Read about the details here.   
  • An option available to some employers to continue operations but with reduced capacity is to apply for the federal government’s Work-Sharing Program. The Work-Sharing Program aims to help employers avoid layoffs and provide employees with income support during times of temporary reduction in normal business activity outside of an employer’s control. Work-Sharing is available to employees eligible for Employment Insurance benefits and requires that employees agree to a reduced schedule of work. Employers and employees must apply for the program together (with union involvement, if applicable). In response to the COVID-19 outbreak, the federal government has waived the mandatory 30-day waiting period for Work-Sharing agreements and has extended the number of weeks that benefits may be received from 38 weeks to 76 weeks. These special measures will remain in effect until March 14, 2021.

What we are hearing 

  • The Alberta Human Rights Commission has issued an information statement regarding COVID-19 that can be found here. It is important to note that this statement has no precedential value and should not be considered as a binding interpretation of the Alberta Human Rights Act. The same guiding legal principles and decisions used prior to the pandemic will be the foundation for any future analysis of whether an employer’s conduct during this crisis constituted discrimination under the Act. For a summary of those principles with respect to family status, please see our e-alert here.
  • Alberta Occupational Health and Safety has not yet provided any significant guidance to employers regarding its obligations under the Act and Code with respect to COVID-19 other than a general summary which can be found here. As such, we continue to recommend employers follow our pandemic planning checklist which can be found here.
  • McLennan Ross LLP, like most other law firms, is trying to provide real-time information to its clients and to employers generally regarding legal issues arising from the pandemic. It is important not to rely solely upon this summary information for important business decisions. We have seen incorrect or overgeneralized information being provided to the public by other firms. We recommend employers consult legal counsel before making such important labour and employment decisions.

What we are saying 

  • Employers can rescind offers of future employment which were made prior to the COVID-19 crisis, but you must be mindful of the possible legal consequences. As with most employment relationships, the terms of any written employment agreement are key, which often is comprised of little more than the offer letter:
    • If your offer letter or executed employment agreement reserves the right to terminate within the first three months of employment with the payment of any notice, we expect you can rely upon that clause to terminate prior to the commencement of the relationship without employee recourse.
    • If, however, your employment documents describe the first three months as a “probationary period”, there is a 2017 decision from British Columbia which found that using such a term required the employer to actually evaluate the employee’s performance and did not permit termination prior to commencement of employment.
    • If your employment documents are silent regarding termination, you may owe the employee pay in lieu of notice despite the employee having never actually worked for you. In the same British Columbia decision referenced above, for example, that employee was awarded pay in lieu of 6 weeks’ notice.