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.