May 29, 2020

McLennan Ross Update for Friday

By McLennan Ross Labour & Employment Team
What we are seeing

  • Premier Kenney announced on May 28, 2020 that Order in Council 080/2020 which declared the state of public health emergency under the Public Health Act will not be renewed.
  • Section 52.1(2) of the Public Health Act allowed the Government, when a declaration of a state of public health emergency had been made, to suspend or modify the application or operation of all or part of an enactment if such actions were determined to be in the public's interest. The Government of Alberta issued over 40 Ministerial Orders to address issues arising from the state of emergency in such areas as privacy, child care programs, community and social services, employment, health, environment, landlord and tenants, transportation and legal proceedings. A listing of all of the Ministerial Orders can be found here.
  • Section 52.1(2) also states that unless terminated earlier by the terms of the Ministerial Order itself or by further Order, the Ministerial Orders all expire 60 days following the end of the state of public health emergency. For employers, this means that the temporary changes to the Employment Standards Code and Employment Standards Regulation, which we summarized here, will expire as well, meaning:
    • Elimination of the unpaid leave of absence for employees who need time off from work because they are caring for children affected by school and daycare closures or self-isolated family members;
    • The shortening of the permitted initial period for a temporary layoff back to 60 days from 120 days;
    • Group termination notice requirements will apply again; and
    • The 24-hour notice requirement for changes to schedules will again be in place.
  • It is possible that some of these changes will be re-implemented by way of formal amendments to the Employment Standards Code and Employment Standards Regulation, which is unlikely to happen prior to the expiry of the Ministerial Order issued under the Public Health Act. It is expected that changes to the Employment Standards Code and Labour Relations Code will be introduced in a June session of the Legislature.
  • On Wednesday in the Legislature, the Premier also noted the following statistics in describing the need to dismantle the economic lockdown:
    • the average age of death in Alberta is 83, while the life expectancy in the province is 82;
    • in Canada, 95% of fatalities from COVID-19 are from those over age 60, 80% are in care facilities, and the risk of death from COVID-19 for people under 65 is 0.006%;
    • younger people, while not completely immune, have a rate of mortality related to COVID-19 that is no higher than their general mortality rate from other illnesses;
    • for most Albertans, the risk of death from other pathogens, accidents, and traffic fatalities is actually higher than it is for COVID-19.
  • These statistics suggest that, in retrospect, Government strategies could have focused more effort on protecting the vulnerable while implementing other measures which would be less disruptive for the general population such as the intensive testing and contact tracing suggested by health professionals.

What we are hearing

  • The Law Society received notice on May 27, 2020 from the Deputy Minister of Justice and Deputy Solicitor General that Ministerial Order 27/2020, which suspended the running of time for limitation periods and other time periods set by certain listed statutes, will not be extended and, as a result, the time required to take actions covered by those listed statutes will resume running on June 1, 2020. The total effect of the Ministerial Order then is to remove the period of time between the effective date of the Ministerial Order of March 17, 2020 and its expiry date of June 1, 2020 in calculating the time to take steps. For example, a limitation period to commence a claim under the Limitations Act which otherwise would have expired on June 30, 2020 would now be extended to approximately mid-September. Any person who believes that a claim was impacted by this Ministerial Order should confirm with legal counsel.
What we are saying

  • On May 27, 2020, the Chief Justices of the Court of Appeal and the Court of Queen's Bench as well as the Chief Judge of the Provincial Court of Alberta delivered a letter to the Law Society of Alberta and the Alberta Branch of the Canadian Bar Association to update lawyers regarding the steps being taken by the Courts to facilitate a return to more regular sittings of the trial courts in response to the Province of Alberta's relaunch strategy.
  • Unfortunately, there was not much information that suggests the capacity of these Courts to hear and resolve matters will be returning to normal in the near future. Of note from the letter is the following:
    • The Court of Appeal has been operating at full capacity and has not had its hearing schedule impacted, due in part to appeals being argued by legal counsel only and there not being live witnesses.
    • The Government of Alberta has committed $27 million in funding to improve the technology used by the Alberta justice system. 
    • The biggest barrier to the resumption of normal operations for the trial courts is the implementation of appropriate sanitation protocols.
    • A limited number of Queen's Bench courtrooms are being equipped with new plexiglass shielding for in-person criminal trials in Edmonton, Calgary, Red Deer, and Lethbridge, with similar steps being contemplated for Provincial Court criminal courtrooms. 
    • The Court of Queen's Bench will not be taking its annual summer recess and will instead conduct as many hearings as circumstances allow through July and August 2020 to reduce the current backlog of applications. 
    • Judicial mediation will also be offered to attempt to resolve exiting court actions.
  • Our takeaway from this letter is that the Courts will be focusing on dealing with criminal and family law claims for the foreseeable future and that civil matters will not be a priority. This may lead some counsel to try to settle matters through more urgent negotiation or lead parties to convert an existing litigation matter commenced via Statement of Claim to be converted to a private arbitration for more timely resolution.

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