On April 7, 2021, in response to a rise in COVID-19 infections, the Ontario government declared a third provincial emergency under the Emergency Management and Civil Protection Act, and has issued a second Stay-at-Home-Order (“Order“), effective Thursday, April 8, 2021 at 12:01 a.m. The new Order is fundamentally the same as Ontario’s last Stay-at-Home Order, but comes on the heels of the province-wide “emergency brake” which came into effect on April 3, 2021.

Ontario’s new measures affect many Ontario employers. The Order does not amend the list of essential businesses which are permitted to continue operating, but the government will increase inspections and enforcement by health and safety inspectors and provincial offenses officers at essential businesses, particularly in regional hot zones.

Continue Reading New Measures for Ontario Employers: Ontario Declares Emergency and Implements Second Stay-at-Home Order

In Abbasbayli v. Fiera Fine Foods Company, the Ontario Court of Appeal recently clarified that corporate directors may be held personally liable for unpaid wages and vacation pay in a wrongful dismissal proceeding.

Background

In Abbasbayli, a former employee brought legal action after his employer terminated his employment. The former employee sued three corporations he alleged to have been his common employer, and two individual corporate directors. In addition to claiming wrongful dismissal damages and punitive damages, the former employee specifically claimed the following against the corporate directors:

  1. Three weeks’ unpaid vacation pay under both s. 81 of the Ontario Employment Standards Act, 2000 (the “ESA”) and s. 131 of the Ontario Business Corporations Act (the “OBCA”) and
  2. Relief from oppression under s. 248 of the OBCA.

Motions Judge Decision

The motions judge struck both vacation pay claims under s. 81 of the ESA and s. 131 of the OBCA against the directors, finding that the claims were not supported by material facts and had no reasonable prospect of success. The motions judge also struck the plaintiff’s oppression claim under s. 248 of the OBCA, with leave to amend, finding that the former employee did not have standing to make a claim and did not plead the necessary material facts to support the claim.

The former employee appealed the motions judge’s decision.

Court of Appeal’s Decision

The Court of Appeal (the “Court”) upheld the motions judge’s decision to strike the former employee’s ESA claim for vacation pay, stating that it was “plain and obvious” the claim could not succeed as the former employee failed to prove the necessary facts to meet the statutory preconditions. However, the Court decided that the motions judge erred in striking s. 131 of the OBCA claim for unpaid wages. The Court also held that the motions judge had properly granted the former employee leave to amend his oppression claim under s. 248 of the OBCA.

In its analysis, the Court found that the former employee’s assertion that he was owed three weeks’ vacation pay was capable of supporting a claim against the corporation and the corporate directors under s. 131 of the OBCA. The Court noted that, “s. 131(2)(a) [of the OBCA] contemplates that the corporate employer will be sued in the same action as the director, although the director will not become liable to pay the accrued vacation pay until execution against the corporation is returned unsatisfied”.

In its reasoning, the Court analyzed several key points that have clarified the circumstances in which oppression claims under s. 248 may be brought by employees:

  • Wrongful dismissal, by itself, will not often justify a finding of oppression;
  • A terminated employee is not always a “complainant” who has standing to bring an oppression proceeding under s. 248 of the OBCA;
  • It is not sufficient for a terminated employee to plead that the individual defendants:
    • Acted oppressively as directors and claim all of their wrongful dismissal damages against such individuals, relying on s. 248 of the OBCA;
    • Directed the employee’s termination; or
    • Failed to ensure the employee received a Record of Employment on termination.

Key Takeaways

Abbasbayli serves as a warning for employers that their corporate directors are not necessarily shielded from liability in wrongful dismissal claims. Further, this case shows how a court may still permit an employee’s claim to unpaid wages and vacation pay to proceed under s. 131 of the OBCA, even if the same claims under s. 81 of the ESA fail.


Many thanks to Brittany Shales for her assistance in drafting this article.

Government benefits and guidance relating to COVID-19 are being introduced quickly and are rapidly evolving. Earlier this month, the Government of Canada amended existing legislation to extend access to certain recovery benefits and published accessibility guidelines to help employers remove barriers for persons with disabilities during the pandemic.

Extension of COVID-19 Recovery Benefits

On March 17, 2021, the federal government passed Bill C-24, An Act to amend the Employment Insurance Act (Additional Regular Benefits), the Canada Recovery Benefits Act (Restriction on Eligibility), effectively extending certain benefits under the Employment Insurance Act and the Canada Recovery Benefit Act. Bill C-24 amends the following benefits as described:

  • Canada Recovery Benefit (CRB): This benefit provides $500 per week for up to 38 weeks (up from 26 weeks) for those who are not employed or self-employed due to COVID-19 and who are not eligible for EI, or had their employment/self-employment income reduced by at least 50% due to COVID-19.
  • Canada Recovery Sickness Benefit (CRSB): This benefit provides $500 per week for up to a maximum of 4 weeks (up from 2 weeks) for workers who are unable to work for at least 50% of the week because they contracted COVID-19, self-isolated for reasons related to COVID-19, or have underlying conditions, are undergoing treatments or have contracted other sicknesses that would make them more susceptible to COVID-19.
  • Canada Recovery Caregiving Benefit (CRCB): This benefit provides $500 per week for up to 38 weeks (up from 26 weeks) per household for workers unable to work for at least 50% of the week because they need to care for children under 12 or other family members who need supervised care, or because the child or family member is sick and/or required to quarantine or is at high risk of serious health implications because of COVID-19.
  • Employment Insurance (EI) Regular Benefits: Individuals claiming EI regular benefits can now access up to a maximum of 50 weeks (up from 24 weeks) for claims established between September 27, 2020 to September 25, 2021. Additionally, self-employed workers claiming special EI benefits will now be able to use a 2020 earnings threshold of $5,000, compared to the previous threshold of $7,555.

The federal government has announced that it will amend the Canada Labour Code to ensure that employees in federally regulated private sector organizations are entitled to access the additional weeks of the CRSB and CRCB. While provincial-level governments have yet to make a similar announcement, we expect some provinces will amend applicable employment standards legislation, or at the very least issue guidance, to align with the extended benefits.

Accessibility Guidelines Related to COVID-19

On March 11, 2021, Accessibility Standards Canada released, for the first time, accessibility guidelines for COVID-19 or other emergencies. These guidelines offer practical information on how to identify then remove barriers for employees during the COVID-19 pandemic or other emergencies:

  • Best practices for accessibility when working from home. Working from home during COVID-19 and other emergencies can create new barriers for persons with disabilities. For example, persons with disabilities may encounter challenges related to equipment, scheduling, use of online meeting platforms, and internet access. This guideline helps employers identify the various barriers that working from home may present and provides guidance on removing such barriers, including the use of adaptive equipment and programs, as well as flexible work arrangements.
  • Accessible practices for returning to the workplace. Emergencies such as COVID-19 can also create accessibility barriers for employees with disabilities when returning to the workplace. Employers should manage start and end times to make physical distancing easier, organize shared spaces in a manner that would allow for physical distancing, and reconsider emergency evacuation procedures for employees with disabilities. Employers should remember that personal protective equipment such as masks may also create new barriers for employees with disabilities. For example, employees who are Deaf, Deafblind, deafened, or hard of hearing may require the use of masks with clear panels for lip-reading purposes or headsets with built-in microphones for high-quality sound and other accessible equipment for hearing while physical distancing.
  • Accessible communication during COVID-19 and other emergencies: A guideline for federal organizations. This resource provides practical guidelines to help federally regulated organizations communicate with persons with disabilities during the pandemic. Of significance, this guidance sets out best practices related to communicating with employees with disabilities using technology, in person, or through print-based content. This may include using closed captions and described videos when posting on social media and identifying and informing employees of available communication assistive devices during verbal communications or directly on written materials.
  • Accessible communication during COVID-19 and other emergencies: A guideline for persons with disabilities. This resource addresses communication barriers that can exist during emergencies for persons with disabilities. Among other things, this guidance encourages employers to work with employees with disabilities to develop emergency plan kits and to create a communication plan to remove barriers related to communication and the use of technology such as establishing a personal support team and identifying communication assistive devices in advance of emergencies.

Employers should be aware that emergencies like the COVID-19 pandemic can create new barriers for persons with disabilities. Both employees and employers have a role to play in removing these barriers and should discuss these needs often.

We are pleased to share with you the BNN Bloomberg interview, “Workers might need to give up some rights to privacy on being vaccinated.” Kevin Coon addresses vaccination issues in the workplace, including whether people will be able to work without getting vaccinated.

Click here to listen to the interview.

This interview was originally posted in BNN Bloomberg.

 

 

To ensure Ontario employers are up-to-date, we outline two new developments affecting businesses operating during the COVID-19 pandemic below, including:

  • the implementation of enhanced COVID-19 outbreak protocols for workplaces in the City of Toronto; and
  • revisions to the COVID-19 screening tool required for Ontario employees.

Continue Reading COVID-19 Update: Ontario Screening Requirements & Toronto Workplace Outbreak Protocols

In November 2020, Ontario updated its regulations under the Reopening Ontario (A Flexible Response to COVID-19) Act, requiring businesses in certain designated public health zones to develop a “safety plan” in response to COVID-19. Since then, the Ontario government’s guidance has been updated, and safety plan requirements have been extended to businesses in all public health zones, including those in “Green-Prevent Zones” and “Lockdown Zones”. Continue Reading Ontario’s COVID-19 “Safety Plans” for Businesses

This is an update to our recent blog post summarizing Ontario’s required COVID-19 workplace screening tool for businesses.

To recap, the Ontario Government requires most Ontario businesses and organizations to implement particular workplace screening questions, requiring workers and essential visitors to complete a medical questionnaire before entering the workplace each day. These requirements have been established under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020.

Ontario recently updated the workplace screening questions for businesses. You can find the updated questions here. The new version of the screening tool can be completed either online or on-site before the worker enters the workplace. Continue Reading Ontario Revises COVID-19 Workplace Screening Requirements for Businesses

On January 12, 2021, the Government of Ontario declared a second state of emergency under the Emergency Management and Civil Protection Act in response to the COVID-19 pandemic. At the same time, the government issued a province-wide Stay-at-Home Order and amended O. Reg. 82/20: Rules for Areas in Stage 1 (“Stage 1 Rules”) to introduce stricter lockdown measures starting January 14, 2021. Continue Reading Ontario Declares Second State of Emergency and Announces New Public Health Restrictions

To ring in the New Year, we highlight the ten most significant developments in Canadian labour and employment law in 2020. Continue Reading Top 10 Canadian Labour & Employment Law Developments of 2020

Last week, the Ontario Government amended O.Reg. 228/20 to extend deemed infectious disease emergency leave (“IDEL”) under the Employment Standards Act, 2000 (the “ESA“) from January 2, 2021 to July 3, 2021. Continue Reading Deemed Infectious Disease Emergency Leave Further Extended to July 3, 2021