July 28, 2020

McLennan Ross Update for Tuesday

By McLennan Ross Labour & Employment Team

What we are seeing
  • Alberta's Chief Medical Officer of Health, Dr. Hinshaw, stated bluntly on July 27, 2020 that Alberta's curve measuring new COVID-19 infections is no longer flat and is trending upward at a worrisome rate. Since moving from Stage 1 to Stage 2 of the relaunch strategy, Alberta has seen the number of active cases skyrocket from 403 to 1,430.
  • With the worrisome trend identified by Dr. Hinshaw in mind, but with the goal of not moving back to Stage 1, a number of municipalities across Alberta are either considering or have already announced public mask bylaws. The City of Edmonton will hold a special meeting on July 29, 2020 to debate and vote on such a bylaw, which would be effective August 1, 2020.

What we are hearing
  • The City of Calgary issued the text for its new mask bylaw. It also issued a business operators guide to assist in understanding the scope of the bylaw. The new mask bylaw and business operators guide are both available here.
  • Key takeaways from the text of the bylaw and the guide include:
    • Businesses are required under the bylaw to post specific signage attached as Schedule A to the bylaw. Although the City of Calgary has said that business operators will not be obligated to enforce the bylaw by evicting persons refusing to comply with it, the bylaw does make it an offence to contravene any portion of the bylaw. This would appear to make it possible that businesses can be fined for not posting the required signage.
    • The bylaw does not make it mandatory for a bylaw officer to issue a violation ticket if there has been a contravention of the bylaw, making it clear that warnings will likely be the short-term result of a violation.
    • In unusual circumstances, such as a wanton breach of the bylaw, the bylaw permits the bylaw officer to issue a violation ticket, which requires a court appearance. The bylaw allows the Court to deviate from the specified penalty "if the totality of the circumstances surrounding any contravention of this bylaw indicate a marked endangerment or increased risk of endangering public health".
    • The bylaw contains a list of exceptions where it does not apply. The business operators guide states that proof is not required if someone claims to be excepted from the operation of the bylaw and businesses are not expected to deny services to persons not wearing a mask.

What we are saying
  • One of the questions that is not specifically addressed in the text of the bylaw or the business operators guide is whether the waiting area of an office space would be considered a public area.
  • Although obviously subject to change once particulars are provided, it is our expectation that such a waiting area would not be considered a public area. Although most anyone can enter into a waiting area during business hours, only those invited to be there by having business to discuss with someone at the office space would be allowed to stay. As such, we believe that the bylaw may indicated that such places are analogous to a place that can only be accessed through membership or invitation.

July 23, 2020

McLennan Ross Update for Thursday

By McLennan Ross Labour & Employment Team

What we are seeing
  • Calgary city council voted to approve a new bylaw making it mandatory to wear masks in public areas, on public transit, or when using ride share services. Although the final version of the bylaw is still subject to change, the following appears to be the intended scope:
    • The definition of public areas will include grocery stores, malls, and places of worship.
    • Public areas will likely not include any area where a membership is required for access e.g., a private gym. However, it would apply to people attending a public health facility unless they are exercising.
    • The bylaw will not apply to schools or daycares.
    • Businesses may be permitted to receive exceptions to the application of bylaw depending on the nature of the business e.g., masks not being mandatory if it prevents getting the offered service, such as a restaurant or dentist. 
    • Masks will also not be required if an employee is in a restricted access area, such as a back office or storeroom. 
    • Other exceptions will be based on the individual accessing the public area. Masks will not be required for children under 2; people with underlying medical conditions or disabilities that inhibit the ability to wear a mask; people who cannot put on or take off a mask without assistance; and those providing care-giving services which would be hindered by the mask.
  • Although not fully clear, it appears that the enforcement of the bylaw will not be left solely to the business owner, as it appears to be the case in Ontario, and as we discussed earlier in our blog
  • Although businesses may face a fine for failing to enforce the bylaw, individuals appear to also be subject to punishment for failing to adhere to the mask requirement.

What we are hearing
  • The Government of Alberta announced its re-entry plan for K to 12 students on July 21, 2020. As we discussed here earlier, the three options were:
    • In-school classes resume with near-normal operations while still following public health measures and directions;
    • In-school classes partially resume with modified routines, smaller class sizes, cohorts, and alternative day or week attendance; or
    • Continued, although enhanced, at-home learning.
  • The plan announced by the province is for schools to resume with near normal operations.
  • Although some people are concerned about whether the enhanced public health measures will be sufficient to protect students, teachers, and other service providers required to attend at a school, this decision was made in consultation with public health officials and is a rational and good faith attempt to balance the health needs of Albertans with the need for children to receive both education and social interaction.

What we are saying
  • With the mask bylaw soon to be in place in Calgary, employers will be required to have their employees in public areas enforce the bylaw, which may lead to unfortunate confrontations as has been the experience in other cities such as Toronto and Ottawa. 
  • It is unlikely that requiring staff to wear masks and enforce the bylaw would be considered a material change in the terms and conditions of employment. We recommend a written policy be implemented with a stated requirement that employees enforce the bylaw, a procedure for doing so, and a direction for the employee to avoid conflict by seeking the assistance of a manager or an external resource to deal with an uncooperative customer.
  • Having such a written policy will also allow an employer to respond to the suggestion from a bylaw officer that it failed to direct its employees to follow the bylaw. It will also allow the employer to more easily discipline employees who refuse to follow the codified policy.

July 20, 2020

McLennan Ross Update for Monday

By McLennan Ross Labour & Employment Team

What we are seeing
  • The Government of Canada announced on July 17, 2020 that it would extend the Canada Emergency Wage Subsidy (CEWS) program to December 19, 2020, and would introduce modifications to the program to allow for more access by business to the subsidy. This includes allowing participation for employers who suffered a revenue decline of less than 30% and continued eligibility for employers whose revenues are no longer more than 30% year over year.
  • As part of the CEWS program modifications, the Government also introduced a new top-up subsidy of up to an additional 25% for employers that have been most adversely affected by the pandemic. This subsidy was suggested to be particularly helpful to employers in industries that are recovering more slowly. Details regarding this new top-up subsidy have yet to be provided.
  • The Government of Canada also announced on July 16, 2020 that it would be providing $19 billion to provinces and territories to assist with the costs associated with restarting the economy.The funding acknowledges that businesses will require internal and external assistance in overcoming barriers to reopening such as the purchase of PPE, ensuring there is childcare available for employees, and enhancing testing and tracing programs.

What we are hearing
  • Included in the $19 billion federal assistance program was money earmarked for municipal and local governments. $2 billion is expressly allocated towards the operating costs of Canadian cities for six to eight months, with provinces and territories required to match that amount from their own funds. The federal government would also match funding put toward public transit, up to $1.8 billion.

What we are saying
  • There has been criticism by unions of the proposed changes to the Labour Relations Code found in Bill 32, which we summarized here
  • In our view, these criticisms are unfounded:
    • Union leaders have complained that forcing employees to opt-in if they want union dues put towards political parties or causes will "silence" the unions on issues such as lobbying for increased worker health and safety programs or paid sick leave, issues unions characterize as a primary concern to members of the union. We disagree with this concern as workers will clearly opt-in and allow dues to be used to support lobbying on issues that they support. The amendment is designed to hold unions accountable for the use of their members' dues for tertiary concerns or for purposes which do not have the support of the rank and file members. 
    • Unions have also expressed concerns about having to apply to the Labour Relations Board (LRB) to get permission for workers to picket at a place other than the worker's place of employment. Although this additional step may slightly delay the ability of a union to legitimately picket at an "ally" of the employer, if the picket line is justified at the third-party location, the LRB will grant permission. This is a much more rational and cost-effective procedure than forcing third-party employers to seek injunctions, which are expensive and untimely options while one's business is being impacted by an illegal picket line. 
  • Bill 32 is not a "union busting" piece of legislation. It is an effort to re-balance the Code from changes by the NDP that were union-friendly and impractical. The new changes could have gone farther than they do. 
  • The changes in respect to union dues are designed to give power to union members over what they want to spend their money on. Unions are supposed to represent their members. If unions are spending union dues on things their members do not support, the last thing they should be doing is undermining the wishes of workers. It is contrary to the mandate of unions to be critical of how the workers they represent want and do not want to use their resources. The new measures are an important check on unions abusing their power. The changes do not stop how unions spend their money. They just require that workers represented by unions support certain non-core expenditures. As unions are supposed to represent workers, it is difficult to understand how unions can legitimately criticize legislation that gives workers the right to decide how their union dues will be spent.

July 17, 2020

McLennan Ross Update for Thursday

By McLennan Ross Labour & Employment Team
As of July 6, 2020, we will only be publishing our blog twice a week, predominantly on Mondays and Thursdays. 

What we are seeing
  • The Government of Ontario announced on July 13, 2020, that most of the province, with the general exception of the Greater Toronto Area, would move to Stage 3 of its reopening plan effective July 17, 2020. It also provided more details regarding Stage 3, link here. In summary, the plan calls for the continuation of general safeguards such as social distancing, the wearing of masks when in public places and where social distancing is impossible, restrictions on the size of indoor and outdoor gatherings and minimizing travel.
  • Conspicuous in its absence from the Ontario announcement was any discussion of school re-openings, with the only reference in the document being to earlier disclosure, which set out the three possible options for school reopening (100% at-home learning, modified school day routine with smaller classes sizes, and alternate day attendance or normal school day routine with enhanced public health protocols), link here.
  • The Government of Alberta announced on July 12, 2020, that its transition to Stage 3 of its relaunch strategy was on the horizon. However, the current trend of an increase in cases, especially among those under 40, was called concerning on July 15, 2020 by the province’s Chief Medical Officer of health. In light of this, it seems likely that a move to Stage 3 will be paused until the number of new cases per day stabilizes at a slightly lower level.  

What we are hearing
  • The lack of certainty regarding school re-openings will make Alberta’s economic recovery more difficult. Any proposal that involves home schooling for part or all of the school week will put increased pressure on parents to stay home from work and continue to work remotely.  In light of the finite amount of space and other resources available to schools, it is not clear how the balancing of health safety and child education can be met.  
  • It is interesting that some health experts believe full-time school may be safer than part-time attendance, the argument being that the greater amount of time students and teachers spend together in full-time school may actually decrease the total interactions students have with people outside of their home per week. Full-time school will leave less unstructured time available for students when additional interactions with a greater variety of people (with a greater risk of exposure to COVID-19) can occur. In light of the significant economic benefit of allowing employees to return to work full-time, it may be that if schools are comfortable enough to reopen, full-time may be safer for all than part-time, without taking into account the mental health benefit to parents of not having to home school.

What we are saying
  • As Calgary continues to debate the merits of a bylaw mandating mask wearing in public places, Toronto is experiencing difficulties with its own bylaw. For the most part, Toronto residents are being respectful of the bylaw. However that may change as reports that the city is leaving it to businesses owners and operators to enforce the bylaw become more widespread. Further, the liability for the $1,000 fine under the bylaw rests with the business that allows someone to not wear a mask in its premises as opposed to the customer who refuses to wear a mask. The issue becomes more complicated in light of the fact that those with legitimate medical or religious reasons for not wearing masks are exempt from the bylaw.
  • There would be myriad legal and practical issues faced by an employer if such a bylaw was introduced in Calgary with a similar exemption:
    • What evidence of a medical or religious reason for not wearing a mask can employees ask for from a member of the public;
    • If an employee does not accept the validity of the stated medical or religious reason and refuses to provide service, is the employer exposed to a human rights complaint; and
    • If an employee makes the determination that the reason given by the customer is legitimate but a bylaw officer appears, concludes otherwise and issues a fine, how can the employer dispute the violation, especially if the customer refuses to cooperate?
  • Issues also arise with respect to forcing employees  to enforce the bylaw, especially when met with a vitriolic and aggressive response from a customer.  

July 13, 2020

McLennan Ross Update for Monday

By McLennan Ross Labour & Employment Team
As of July 6, 2020, we will only be publishing our blog twice a week, predominantly on Mondays and Thursdays. 
What we are seeing
  • The Government of Ontario announced on July 10, 2020 that it would be providing details regarding Stage 3 of its reopening plan on July 13, 2020. Most of Ontario moved to Stage 2 on Jun 19, 2020 with the Greater Toronto Area being delayed by 5 days. Thus far, the only guidance from the Ontario government has been to state generally that Stage 3 would allow for the reopening of most remaining workplaces and community spaces, albeit with the gradual lifting of restrictions, and for workplace safety guidance to remain in place and available. 
  • To date, the Government of Alberta has provided an estimate of when Alberta will move to Stage 3 of its relaunch strategy. A review of Alberta's relaunch plan document suggests that a move to Stage 3 will not occur in the immediate future unless there are some modifications of the plan. Currently, if the plan is followed, a move to Stage 3 will mean that masks are unnecessary and there is no longer any need for the isolation and quarantine measures that have been in place since the declaration of the public health state of emergency in March 2020.

What we are hearing
  • Alberta's relaunch strategy also states that public masks are unnecessary in Stage 3. It is doubtful that such advice will be an express part of Alberta's or Ontario's Stage 3 plans, although it is likely each province will leave the matter up to local governments. 
  • On June 30, 2020, the City of Toronto passed a bylaw requiring masks or face coverings in all enclosed public places as of July 7, 2020. The measure followed advice from Toronto's Medical Officer of Health for Council to legislate for the protection of the health, safety, and well-being of persons in Toronto and enact the temporary bylaw to prevent a resurgence of COVID-19 cases. 
  • On July 8, 2020, Mayor Nenshi of Calgary indicated that he would consider bringing forward a motion to implement a similar bylaw if Calgarians were not voluntarily wearing masks in public and when on public transit. There has been some discussion in Edmonton regarding enacting a similar bylaw, but with less express support. 
  • It is anticipated that both cities will monitor the number of new cases and whether the public follows the general social distancing and hygiene directions of the provincial government. If there is no significant spike in cases, a mask bylaw will prove necessary.

What we are saying
  • On July 9, 2020, the Privacy Commissioner of Alberta released a 66-page Privacy Impact Assessment Review Report regarding the ALberta Health ABTraceTogether app. 
  • The Report found generally that as the use of the app was largely voluntary, the person using the app was effectively choosing to provide their health and personal information and therefore such individual control addressed most privacy concerns. The Commissioner did find that when first introduced, there was a real concern about the possible secondary use of personal information collected by the app, such as quarantine enforcement. In response to that concern, Alberta Health developed a policy that prohibited the use of that information for such other purposes. 
  • Of note for employers was that the Commissioner stated that for employees in the public, health, and private sectors who are issued devices by their employer or use their own devices for work purposes, the risk mitigation Alberta Health has put in place is insufficient. Employers have legal obligations under Alberta's Personal Information Protection Act, as well as other applicable privacy legislation, to make reasonable security arrangements to protect health and personal information in their custody or control. The risks represent a potential contravention of Alberta's privacy laws by regulated entities if they were to allow employees or affiliates to run the app on enterprise-issued devices that store or make other health or personal information accessible. 
  • Based on this assessment, we believe that it would be a violation of the Personal Information Protection Act for an employer to mandate that its employees download and use the app.

July 8, 2020

McLennan Ross Update for Wednesday

By McLennan Ross Labour & Employment Team
What we are seeing
  • As we commented in our e-Alert sent out on July 7, 2020, the Government of Alberta has just introduced Bill 32, Restoring Balance in Alberta's Workplaces Act, 2020, which contemplates changes to improve the Labour Relations Code and Employment Standards Code, and gives a lift to employers as they generate employment in the wake of COVID-19. This Bill addresses many of the problems encountered by employers flowing from the 2017-18 changes to the Labour Relations Code and Employment Standards Code passed by the NDP government at that time. 
  • The changes to the Employment Standards Code include a more thoughtful and workable structure for averaging arrangements with employees who work varying work schedules and compressed work weeks, providing the employer with more time to pay a departing employee his or her final earnings, extending the temporary layoff period, removing prohibitively expensive group termination provisions, expressly permitting recovery of amounts paid to an employee in error or vacation pay provided to a departing employee in advance of it being earned, changing hours of work and rest periods, and streamlining the process for employers to apply for permitted variances to the Code
  • There were two required changes that were made obvious by the COVID-19 pandemic: 
    • A permanent change to the layoff provisions of the Code to extend the maximum initial layoff period from 60 days to 90 days within a 120-day period (although temporary amendment allowing a COVID-19 related layoff to be up to 180 days is still in place); and
    • A return to the old rules with respect to group terminations, with employers having to provide 4 weeks of notice to the Minister of Labour only for a group termination of 50 employees or more, with the group termination notice requirement being removed from the individual termination notice or pay in lieu of notice requirements. 
  • There are numerous changes to the Labour Relations Code, including tightening the conditions for remedial certification and first contract arbitration, removing arbitrary time limits in certification and revocation applications, allowing early renewal of collective agreements, removing arbitrator powers to ignore grievance time limits, providing a financial disclosure obligation to unions, requiring worker opt-in for union dues related to political and social causes, changing many aspects of the Code relating to the construction industry, and adding a reverse onus to unfair labour practice complaints against unions and reducing the application of reverse onus in complaints against employers. 
  • McLennan Ross is hosting a webinar on July 22 to discuss these legislative changes. Information on the webinar can be found here

What we are hearing
  • The Alberta Courts issued a notice to the profession and the public requiring face masks to be worn in all public places in any courthouse as well as in the courtroom when directed to do so by the presiding Judge or Master. Children under two years of age, persons with a medical condition or disability that inhibits wearing a face mask, and persons who are unable to place or remove a face mask without assistance are exempt from these requirements. This notice is a clear indication that the courts intend to increase the number of matters being argued in person as opposed to continuing to focus on remote hearings. 
  • On July 7, 2020, the Court of Queen's Bench announced that subject to availability, it would attempt to hear short Family, Civil, and Commercial trials or other Family, Civil, and Commercial matters via WebEx video and in-person. The Court had previously announced that it would be using this time to hear short, judge-alone Criminal trials, but it is opening up the time to these other matters if there are not enough short Criminal trials to use up all of the available court time.

What we are saying
  • With the workplaces reopening, questions are being asked about how the Workers Compensation Act applies to an employee contracting COVID-19 when it is not clear if the infection occurred in the workplace.
  • The WCB issued a fact sheet for employees in March 2020 that stated "[L]ike any other claim, WCB-Alberta must determine whether your exposure to the disease arose out of the course of your employment and was caused by an employment hazard (in this case, workplace exposure to the virus)." WCB has not updated this fact sheet and does not address how difficult it will be for an empoyee to prove that he or she contracted COVID-19 in the workplace. This will place a burden on employers as they reopen, for if an employee has COVID-19 or has to self-quarantine due to a concern about infection, that employee may be entitled to use paid sick leave or short-term disability coverage, which some employers self-fund.

July 6, 2020

McLennan Ross Update for Monday

By McLennan Ross Labour & Employment Team
What we are seeing
  • The Government of Alberta continues to issue sector specific guidance for businesses reopening as part of the relaunch strategy. Recent guidance documents have been issued or updated for campgrounds, grocery stores, hotels and vacation rentals, outdoor events, restaurants and bars, taxis and rideshares, drive-in events, public rallies, wellness services, and recreation. All of the guidance documents can be found here.

What we are hearing
  • On June 29, 2020, the Provincial Court of Alberta announced that effectively July 6, 2020, it would be increasing the number of matters that can be heard in person at certain locations. The Court will be enforcing strict health and safety measures including physical distancing, wearing masks, modifying courtrooms, and enhanced cleaning. 
  • All civil matters scheduled after July 6, 2020 will proceed as scheduled, including in-person mediations, pretrial conferences, trials, and other applications. In Edmonton and Calgary, pretrial conferences and applications will be conducted in person. In areas outside of Edmonton and Calgary, pretrial conferences and applications will be conducted by telephone. 
  • It has been unclear how the Courts would reopen for trials. It may be that the Provincial Court will be the test court, and if it can allow matters to proceed in person without infection, the Court of Queen's Bench may follow the same procedures.

What we are saying
  • With the courts slowly reopening and the implementation of new procedures to allow parties to move existing court actions forward, we are confident that the courts will expect parties to show cooperation and good faith effort to facilitate resolution of interim or procedural issues. Although we expect the courts to be sympathetic to struggling businesses engaged in litigation, as we move through Stage 2 of the relaunch, we expect courts will not accept the existence of the public health state of emergency as a continuing excuse for not meeting obligations under the Alberta Rules of Court
  • Our advice is for parties to existing litigation to be ready to move matters forward and find the time to commit to the litigation. If the commitment of such resources at this time is still not possible, litigants should objectively document any ongoing limitations being faced by that party that justifies not taking required steps.