May 8, 2020

McLennan Ross Update for Friday

By McLennan Ross Labour & Employment Team

What we are seeing

  • The CBC has reported a large number of COVID-19 related lawsuits have already been commenced with more expected to hit the courts in the near future. These cases relate to denied business interruption insurance claims, claims against nursing homes, price gouging, refusals by airlines and other business to issue ticket refunds, and similar claims for refusals to refund tuition and campus fees. There are also several class action lawsuits already commenced against a long-term care facility in Ontario and various insurers.
  • Thus far, there has been no indication from the Federal Government that it intends to file legislation to either immunize businesses from such claims or provide an alternate method of adjudicating such disputes.
  • The Federal Government did announce that the Canadian Emergency Wage Subsidy (CEWS) program will be extended beyond its originally stated expiry date of June 6, 2020. The CEWS program allows qualified employers to receive a wage subsidy of up to the lesser of $847 of 75% of the employee’s pre-pandemic income per week for each employee. McLennan Ross LLP’s summary of the program can be found here.

What we are hearing
  • The Chief Justice of the Alberta Court of Queen’s Bench held a virtual town hall with lawyers on May 7, 2020 that provided some indication of how the Courts will start to reopen once it is safe to do so. The Court sent a letter to the profession on May 8, 2020 summarizing what was disclosed at the town hall.
  • Highlights from the letter include:
    • The Alberta Court of Appeal has continued to hear all matters with 90% of scheduled hearings being successfully completed in April 2020.
    • The Court of Queen's Bench continues to only deal with emergency matters and desk applications. It is attempting to expand the use of the WebEx platform to allow it to hear matters via videoconference; however, this has been hamstrung by a lack of WebEx licenses. The Court is attempting to re-schedule Judicial Dispute Resolutions (JDRs) that were cancelled after March 14. JDRs previously scheduled between May 1 and May 31, 2020 are being rescheduled to proceed via WebEx.
    • The Court is working on processes to allow Masters’ Chambers to begin accepting ex parte applications electronically and eventually to hear contested applications either remotely using WebEx or to decide on the basis of written submissions only.
    • The Provincial Court has been attempting to hear pre-trial conferences and administrative matters via teleconference, but is having to reschedule trials and other contested matters. It too is trying to secure the technology to hear matters via WebEx.
    • The Alberta Government has committed $27 million to assist in improving the court system through technological innovation.
What we are saying
  • As the reopening of the Alberta economy is slowly being implemented, employers who issued temporary layoff notices under the Employment Standards Code are now going to be recalling employees and asking them to return to work. An issue that has arisen is whether the employer can issue the formal recall notice under the Code and direct the employee to work reduced hours as operations come back online and whether the employee would be ending his or her employment by refusing to return to work.
  • The Code does not contemplate a phased recall. The intent of the temporary layoff is to allow the employer to maintain the employment relationship and not terminate the employee, but still place them effectively on an unpaid leave. As mentioned previously, issuing a temporary layoff notice could be considered constructive dismissal at common law unless permitted by an employment or collective agreement. If the employee does not claim constructive dismissal, he or she is then on leave until recalled or terminated.
  • When recalling the employee, if the employer is directing the employee to accept a different role, responsibilities, compensation, or hours, an employer would again be potentially constructively dismissing the employee. The temporary layoff notice provisions in the Code are designed to preserve the employment relationship and it would arguably be inconsistent for the employer to be able to recall the employee and implement materially different terms and conditions of employment.
  • As with the issuance of the temporary layoff notice at first instance, it would be up to the employee to decide if he or she would rather have a job at temporarily reduced hours or claim constructive dismissal. Although every case is fact specific, it would be aggressive for an employer to issue a recall notice to an employee directing the employee is to work reduced hours and then terminate the employee’s employment without payment in lieu of notice for failing to come back to work.

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