June 22, 2020

McLennan Ross Update for Monday

By McLennan Ross Labour & Employment Team
What we are seeing
  • As with the Canada Emergency Response Benefit (CERB), the Federal Government announced that the Canada Emergency Wage Subsidy (CEWS) would be extended to the end of August 2020. Although of some assistance to employers, there have been many complaints about the effectiveness of the CEWS, such as: 
    • The comparatively late announcement of the subsidy amount of 75% of employee wages up to $847 per week;
    • The delay of a full month from the start of the pandemic in providing details of the program to employers coupled with the 6-week delay in unveiling the application process; 
    • The program requirement that employees who had been laid off or furloughed due to the delay in rolling out the program were only eligible if they were rehired and were paid their retroactive pay in order to meet the eligibility criteria for the claim period; and
    • The requirement to show a 30% reduction in revenues.
  • The Government had estimated it would pay out $73 billion in CEWS applications. To date it has paid out $13.3 billion. We hope the Government will realize the difficulties its current eligibility requirements are causing and streamline the process.

What we are hearing
  • The Court of Queen's Bench of Alberta took another step forward in its effort to implement procedures to allow actions to move forward. As of June 24, 2020, the Court will commence scheduling half-day Civil Special Justice and Masters Chambers applications remotely via WebEx. These hearings have largely proceeded in the same manner as previously, with the exception being that counsel cannot rely on any evidence or case authority that was not provided in advance of the application. In some ways, this could be a positive as it may reduce the number of adjournments, which used to occur in Chambers at the last minute when a party passed up a case or document not previously disclosed to opposing counsel despite the requirements under the Alberta Rules of Court.

What we are saying
  • Consistent with the above efforts of the Court of Queen's Bench to create ways to allow for litigation to move forward without the need for in-person attendance, a recent decision of the Court addressed the issue of Questioning or examination by video-conference when one party will not agree to proceed in that fashion. 
  • In Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta, 2020 ABQB 359 (CanLII), there had been an emergency injunction application heard after the declaration of the state of public health emergency in Alberta. The application had failed, but the Court directed the parties to "attempt to draw up the procedural roadmap for the reinstatement litigation". The parties were unable to do so, with the primary point of contention being whether Questioning on Affidavits should be deferred until the pandemic was over or whether they should proceed via video-conference. The main objection by one of the parties was that the process would be unwieldy, and as many of the applicants were over the age of 60, effectively managing the technology would be too difficult. 
  • The Court reviewed the 2010 changes to the Alberta Rules of Court and found that although there were recent decisions which contemplated the ability of parties to agree to conduct video-conference Questionings, there was to date no decision where the Court had directed a party to submit to such a procedure over its objection. Justice Lema did find a decision prior to the introduction of the new Rules in 2010 where the Court did direct completion of Questioning for Discovery via video conference. 
  • As such, and in light of the foundational Rules which direct the Court to augment the Rules as necessary to ensure the fair, just, and timely resolution of parties' claims, the Court determined it had the authority to direct the parties to proceed with Questioning on Affidavits by way of video conference and made such a direction. 
  • This decision is a clear indication that the Courts will not allow parties to sit on their hands and wait for things to return to normal. Counsel must embrace that the modernization of the litigation process has been accelerated by COVID-19 and a new way to practice is being created.

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