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.

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