McLennan Ross Update for Wednesday

By McLennan Ross Labour & Employment Team

What we are seeing

• The Alberta Government announced the granting of another Ministerial Order suspending any limitation periods found in certain legislation administered by the Minister of Community and Social Services from March 17 to June 1, 2020. This Ministerial Order is similar to the broader Ministerial Order which suspended limitation periods and any period of time within which any step must be taken in any proceeding covered by the legislation (and regulations enacted under that legislation) listed in the Appendix to the Ministerial Order. This included the Limitations Act and the Judicature Act, the latter being the enabling statute for the Alberta Rules of Court.
• Of note is that despite the delay of over one month between each of these Ministerial Orders, the end date of the suspension for both is June 1, 2020. This may be nothing more than a desire to have commonality between the two Orders but may also be reflective of the current view of the Government of Alberta of when it hopes the Courts will be able to reopen in some capacity.

What we are hearing

• The Court of Queen’s Bench issued an announcement on May 5, 2020 regarding the launch of a summary disposition court to hear matters via Webex, link here. 
• Although not clear in the announcement, from a review of the “Summary Disposition Hearing Request Form” that is to be completed where parties agree to proceed in this matter, this court may be limited to criminal matters only.
• Unlike the Alberta Court of Appeal, to date the Court of Queen’s Bench has not been openly scheduling matters to be heard via video conference due to technological and staffing limitations. This summary disposition court may be the first step towards the Court of Queen’s Bench expanding how it hears matters during this pandemic to address some of the backlog of cases which have stalled because of the Court of Queen’s Bench limiting in-person hearings to emergency matters only.

What we are saying

• Many employers have availed themselves of the Canada Emergency Wage Subsidy (CEWS) to receive a 75% wage subsidy to eligible employers for up to 12 weeks, retroactive to March 15, 2020. As we discussed in our blog on April 17, 2020, the subsidy is the lesser of $847 or 75% of the pre-crisis wages or salaries of existing employees. Pre-crisis remuneration for a given employee is based on the average weekly remuneration paid between January 1 and March 15, 2020.
• The Canadian Government stated that its hope was that CEWS recipient employers would keep employees whole with respect to their pre-crisis earnings, with the employer paying the remaining 25%. However, this employer top-up is not a part of the CEWS legislation and is only described on the Government of Canada website as a best efforts expectation.
• A question that has come up is whether an employer can give an employee a raise or bonus while receiving the CEWS subsidy. From our review of the CEWS program information here, there does not appear to be any prohibition against providing an employee such a raise or bonus. It would not affect the subsidy amount the employer would be eligible to receive for past eligibility periods as that amount is based on earnings already received by the employee. That being said, the Government of Canada has made it clear it will be reviewing the businesses who received the CEWS subsidy, and although a raise or bonus does not seem to be prohibited, we cannot predict how the Government will react to an employer that applies for a subsidy but can afford to increase its employees’ compensation.