April 3, 2020

McLennan Ross Update for Friday

By McLennan Ross Labour & Employment Team

What we are seeing

  • The Government of Alberta and the Law Society of Alberta jointly announced the execution of a Ministerial Order suspending limitation periods found in most government legislation and the regulations enacted under that legislation. Important details of the Ministerial Order include:
    • The commencement date of the suspension is retroactive to March 17, 2020;
    • The period of suspension ends on June 1, 2020;
    • The period between March 17, 2020 and June 1, 2020 shall not be counted for the purpose of any limitation period;
    • The suspension, assumedly for any action, claim or proceeding which has already commenced, is “subject to the discretion of the court, tribunal or other decision-maker”, which seems to mean that this general Ministerial Order can be overridden by a specific order or direction given in that action, claim or proceeding;
  • The list of legislation is comprehensive and 3.5 pages in total. Of note is that it includes the Limitations Act, which sets the time-frame to commence a court claim, the Alberta Human Rights Act and the Judicature Act, which is the enabling statute for the Alberta Rules of Court. Notably absent from the list of legislation are the Employment Standards Code and the Labour Relations Code.  
  • Included in the list of legislation is the Age of Majority Act. This will be sad news for anyone turning 18 between March 17 and June 1, 2020.

What we are hearing

  • As further details regarding the Canada Emergency Response Benefit ("CERB") are disclosed, it appears the Government of Canada’s initial promise that the benefit would be available to applicants who were unable to find a job or had a job offer withdrawn due the COVID-19 has been withdrawn. According to the official website, an applicant “must have stopped working as a result of COVID-19 and be without employment income for at least 14 consecutive days within the initial four-week period.”  
  • This is an extremely troubling development for employers who had been forced to rescind firm offers of summer employment but were given some comfort that affected employees could apply for the CERB. How the Government of Canada now expects students to earn money to pay for tuition and expenses in the fall is not clear.

What we are saying

  • Although most temporary layoffs have occurred within the last 2 weeks, employers are already predicting that the layoffs will have to be extended beyond the initial 60-day period permitted under the Employment Standards Code. Subject to any future interim relaxation or changes to the Code, the Employment Standards Board has taken the view that consent of the employee is required for any such extension. According to the Board’s website, “[t]he period of temporary layoff can be extended beyond 60 days if the employer makes regular payment to or on behalf of the employee, such as continuing to pay wages, employee pensions or benefits and the employee agrees to these payments in lieu of a firm limit of the length of the layoff.”

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