By Nicole A. McAuley

Many workplaces in Ontario that were temporarily closed as a result of the pandemic have re-opened or are in the process of re-opening. With the risk of contracting COVID-19 still looming, employers are likely to find some employees are reluctant to return to their workplace. Employee reluctance may stem from reasonable safety concerns, or may simply reflect an employee’s preference to continue working from home. Employers must be prepared to navigate such requests in consideration of the Occupational Health and Safety Act [the OHSA], the Human Rights Code [the Code], and public health directives.

Before reopening a workplace, employers should develop a COVID-19 policy. The policy should be specific to the needs of each individual workplace and take into consideration the guidelines developed by the federal government, which are available here, and the provincial government, which are available here.  Once the policy is established, each employee’s refusal to attend the workplace must be considered on a case-by-case basis.

COVID-19 and the OHSA

Employers have an obligation to take reasonable precautions to protect the health and safety of employees. Where an employee has a reasonable belief that their work conditions are unsafe, including due to COVID-19, they may refuse to attend the workplace on the basis of the protections afforded under the OHSA. If such a work refusal is made, the employer has an obligation to investigate the alleged hazard and eliminate or reduce same. Thereafter, the employee may still refuse to work if they have reason to believe that they are in danger. When this occurs, the employer or the employee must notify the Ministry of Labour [MOL] and a MOL inspector will investigate the refusal to work. A decision in writing is then released by the MOL, which will either require the employee to return to the workplace, or order the employer to take remedial measures. There is a lot involved in this process, which is beyond the scope of this blog post.

An employee may refuse to return to work due to a general fear that they will become infected with COVID-19. If the employer follows the federal and provincial guidelines, public health directives, and the OHSA requirements, the employer will likely be considered justified in determining that a work refusal because of fear of infection is insufficient. However, the employer is still required to complete the above-noted process under the OHSA in order to come to that conclusion.

COVID-19 and the Need for Accommodation under the Code

 An employee who is under a requirement to quarantine in accordance with public health orders or directives cannot be compelled to return to workplace until they are able to safely do so. In such situations, job protected leaves may be available; however, if the employee is able to continue to work from home that accommodation should be provided.

There may also be situations where an employee cannot return to work because they are caring for someone infected with COVID-19 or do not have appropriate child care. Public schools in Ontario remain closed. While some day cares have reopened, spots are limited due to the provincial directives, and most summer camps/recreational activities have been cancelled. In such cases, employees may be entitled to job protected leaves. However, if such an employee has been successfully working from home prior to the workplace reopening, an employer should give serious consideration to a request for accommodation to allow the employee to continue doing so.

Some employees may advise that they are unable to return to the workplace because they are at high risk of contracting COVID-19, are likely to endure significant complications if they contract the disease, or have other medical considerations relating to mental or physical health. If the accommodation request is medical in nature, an employer would typically request a letter from a treating physician. However, since the outset of the pandemic, the Province of Ontario has mandated that employers are not permitted to ask for medical documentation to substantiate an absence from work due to COVID-19. In such a situation, an employer should assess the information provided by the employee. Employers have an obligation to assess each request for accommodation individually to determine what can be done up to a point of undue hardship. Where an employer suspects that an employee requires accommodation but the employee has not requested it, employers have a duty to inquire whether the employee has such a need.

It may be possible to accommodate in a way that would allow the employee to return to the workplace. Such accommodation may include staggered start and end times, a schedule that includes both attending at the workplace and working from home, or modifications to an employee’s work space. Employers can propose an alternative form of accommodation and request the employee’s feedback with respect to whether it would meet their needs. An employee is not entitled to work from home merely because they request this form of accommodation. If a reasonable alternative is offered that would sufficiently meet the employee’s needs, they are required to engage with the employer to find reasonable accommodation. Employers must keep in mind that they have a positive obligation to accommodate employees to the point of undue hardship, and the standard to establish undue hardship is very high.

If a request is not based on a need for accommodation or legitimate health and safety concerns, an employer is entitled to require that the employee return to the workplace. In such situations, an employer may wish to advise that employees were only permitted to work from home due to health and safety concerns and public health directives. As the workplace has now reopened, if there are no legitimate reasons upon which a request is made, employees are required to return to the workplace. This can be a complicated and subjective process that requires careful consideration and interpretation/application of the above-noted legislation and common law. Employers should seek legal advice to assist with these requests in order to ensure that the rights of all involved are protected.

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Consumer v. Business Protection – Public Policy Debates in the COVID-19 Era

The Government of Ontario has recently alluded to proposals of joining other jurisdictions that have enacted legislation that shields businesses against lawsuits related to COVID-19. While details are still underway, these novel measures will likely be subject to scrutiny for on the one hand, protecting businesses who were tasked with dealing with unchartered circumstances, and on the other hand, insulating businesses who should be held accountable for its negligence or poor practice during and beyond this pandemic.

Many provinces and states have implemented executive orders granting various grades of immunity to health care practitioners and facilities. In British Columbia for example, a Ministerial Order came into force in April, that precludes law suits or any damages therein arising out of infection or exposure to the pandemic while providing essential services. The only caveats to trigger these protections are: a) the business must have been complying with the provincial public health guidelines and, b) the business was not grossly negligent. Given the wide range of sectors that are qualified as “essential services”, this new policy is far-reaching. Similar legislation was passed in Oklahoma, Utah, North Carolina and Wyoming; and other states and provinces are projected to follow.

These policies have contentious implications on the community at large . Many fatalities over the last few months for instance, are attributed to negligence within the elder care regime, and can be connected to long term care homes. These facilities are already the subject of several class action law suits. Those in favour of these policies suggest that these measures are imperative for businesses to remain operable, qualify for insurance coverage, and sustain its practice. However, advocates against these immunities argue that such protections will only allow businesses to circumvent liability for poor business practices. The Government will be tasked with balancing these compelling narratives to create a regime that bolsters the economy while protecting its citizens.

As the debate between good public policy and sound economic decisions ensue, the next few weeks will be determinative in Ontario with respect to the precedent it seeks to set. The legal community awaits further guidance on the scope and breadth of such legislation to properly assess its implications on businesses and its consumers.

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Parliament recently enacted the Canada Emergency Wage Subsidy (“CEWS”) into law. Therein, a number of changes were made to the framework that had been previously announced, including relaxing the revenue test for the month of March and some flexibility in the determination of revenue.

The subsidy is currently available for 12 weeks commencing March 15, 2020 and ending on June 6, 2020. It is possible that the eligible period for CEWS could be extended depending on how the implications of the COVID-19 pandemic continue to develop in Canada. The framework appears to contemplate a potential extension up to September 30, 2020.

The eligible entities for CEWS include corporations that are not tax-exempt, individuals, registered charities or not-for-profit organizations, and partnerships consisting of eligible entities (i.e. a partnership of corporations or individuals etc).

In order to qualify, an employer must have a 15% reduction of revenue in March (compared to March 2019) and 30% in April and May (compared to April and May 2019 respectively). Alternatively, an employer may elect to use its average revenue earned in January and February 2020 as the baseline comparator. If the latter option is chosen, the employer must use the average of January and February 2020 revenue in comparison to each of the three months of the program.

An employer who applies for CEWS has the potential to receive payments for three separate four week claiming periods being (1) March 15 to April 11, (2) April 12 to May 9, and (3) May 10 to June 6. The employer will receive the subsidy for a specific claiming period if it meets the revenue reduction test mentioned above for that period, or if it has met the revenue reduction test for the immediately preceding claiming period.

To apply for this benefit, an employer must:

• File an application with the CRA through the CRA’s My Business Account portal before October 2020;
• Attest that the application is complete and accurate in all material respects; and,
• Have a business number registered with the CRA to make remittances for income tax deductions that was in place prior to, or as of, March 15, 2020.

The amount of the subsidy is dependent on whether an employee was employed before March 15, 2020, a new hire, or whether the employee deals at arm’s length with the employer. The legislation provides as follows:

• Pre-existing employees are entitled to the lesser of (i) the amount of eligible remuneration paid in a week to a maximum of $847.00; and (ii) 75% of the employee’s baseline remuneration.
• New hires are entitled to 75% of the amount of remuneration paid in a week, up to a maximum of $847 per week.
• Non-arm’s length employees will only qualify if they are pre-existing employees. The aforementioned guidelines for such employees apply herein.

“Eligible remuneration” includes salary, wages, fees, commissions or other amounts for services of the eligible employee, but does not include retiring allowances, stock option benefits, or other amounts that can be expected to be returned to the employer.  “Baseline remuneration” is equal to an employee’s average weekly remuneration for the period from January 1, 2020 to March 15, 2020, excluding any consecutive seven day period for which the employee was not paid. The legislation includes an anti-avoidance rule that prevents the undue inflation of salary paid during a claiming period that is offset by a corresponding reduction in a future period.

There is no limit on the maximum subsidy amount for which a qualifying employer may claim. However, any benefit received from the 10% Temporary Wage Subsidy will reduce the amount available under this subsidy.

Employers are required to make “best efforts” to top-up employees’ salaries to bring them to pre-pandemic levels; however, they are not required by the legislation to do so.

Revenue is measured on an accrual basis for each period, but the legislation allows an employer to utilize the cash method if that produces a preferable result. Revenue generally includes the inflow of cash, receivables or other consideration arising in the course of ordinary business activities of the employer (i.e. from the sale of goods, rendering of services and the use by others of resources of the employer).

CEWS is considered to be government assistance and must be included in the employer’s taxable income for its current fiscal year.

The subsidy an employer is entitled to will be deemed to be an overpayment of tax by the employer. The overpayment is refundable to the employer at any time during the taxation year.

Employers are permitted to return laid off employees back to work and qualify. Employers are also permitted to apply for the subsidy for laid off employees who were previously working within a claiming period.

Employers must keep records evidencing their revenue declines and remuneration paid to employees. They will not be expected to submit any paperwork to the CRA at the time of application, but may later be subject to an audit by the CRA.

Notably, this subsidy will be denied to an employer where:

• a person or partnership not dealing at arm’s length with the employer enters into a transaction or participates in an event (or a series of transactions or events) or takes an action (or fails to take an action) that has the effect of reducing the qualifying revenues of the employer for a references period; and,
• it is reasonable to conclude that one of the main purposes of the transaction, event, series or action is to cause the employer to qualify for the subsidy.

Employers who engage in artificial transactions to reduce revenue for the purpose of claiming the subsidy will be subject to a penalty equal to 25% of the value of the subsidy amount claimed, in addition to the requirement to repay the full amount of the subsidy that was improperly claimed.

It is also important to note that the legislation provides the CRA with the ability to publish the name of any employer that makes an application for the subsidy. Thus, in determining whether or not to apply, each employer should consider any reputational or other commercial impacts from the CRA potentially disclosing its name.

Further information about the CEWS program is available here:

https://www.canada.ca/en/revenue-agency/services/subsidy/emergency-wage-subsidy.html

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With the unprecedented evolution of COVID-19, businesses are anticipating that Canada’s property and casualty insurance industry will begin introducing pandemic business interruption coverage. However, due to the grand size and scale of pandemic exposure, along with the distinctive characteristics of each pandemic, it would make it nearly impossible for the industry to offer blanket pandemic coverage to businesses at affordable rates.

Business interruption coverage is usually an add-on to an existing commercial policy of insurance, that covers continuing expenses or replaces lost profits, in the event that a business is forced to temporarily shut down or slow down.  There are three types of business interruption policies, and the coverage afforded by each vary:

1. Gross Earnings Policy: the policy will respond until property or damage is replaced or repaired and/or stock is replaced;
2. Profits from Policy: the policy will respond until a business resumes its normal, pre-interruption level, in accordance with the policy limits; and
3. Extra Expense Policy: the policy will respond during the period that extra expenses are required, as the business can remain operational, though being affected by loss and/or damage.

It is no surprise that most industries are facing financial deficits due to COVID-19 and the central question surrounding all is whether business interruption losses as a result of COVID-19, in any one of the aforementioned policies, would trigger insurance coverage for those losses.

On March 30, 2020, the Honourable Madam Justice Wilson released her decision  in MDS Inc. v. Factory Mutual Insurance Company (FM Global) 2020 ONSC 1924 (hereinafter “MDS”), which included an analysis of the definition of “physical damage” with respect to an all-risks property insurance policy. In this case, it was argued that the loss of use of a premise without any actual damages to the premise or a component of the premise should not qualify as physical damage under the policy as physical damage requires tangible damage.

This argument generally forms the basis for decisions to deny insurance coverage, as the interruption has led to what would be classified as a “loss of use” rather than “property damage.” However, this argument was rejected in MDS with the Court finding that loss of use could be considered property damage so as to trigger the business interruption coverage.    

Madam Justice Wilson emphasized that there is no definitive meaning of resulting physical damage in all-risks policies in Canada and there are conflicting lines with respect to the interpretation. Her Honour explicitly rejected the notion that physical tangible damage be apparent and instead adopted a broad interpretation, which would treat the loss of function or use of premises as physical damage. Accordingly, Madam Justice Wilson concluded that all-risks property insurance is meant to provide broad coverage and as such, said interpretation is in accordance with that principle. To simply interpret physical damage to be tangible would deprive policyholders of a vital aspect of coverage for which they contracted, which would undoubtedly be in direct contrast of the commercial purpose of all-risks coverage.

It is important to note that MDS did not deal with COVID-19.  However, this decision could be used to eliminate a significant hurdle that businesses would have had to overcome with respect to claiming business interruption losses arising from COVID-19 under traditional commercial policies.

Without a doubt, this landmark decision will have an impact on business interruption loss claims as they relate to COVID-19, as both businesses and insurance companies strive to assess coverage.

Should you require any assistance with coverage, investigation and defending of any such claims, please feel free to contact FCL LLP.

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All Canadian workplaces are obligated under Canadian Privacy Laws to secure the use, collection, retention, disclosure or disposal of sensitive data. In the legal world, this obligation is doubly compounded by our professional duty to protect the confidentiality of our clients. Law firms therefore, invest in all precautions necessary to secure against risks of unauthorized use of data. This often translates into strict technical and organizational measures to insulate against privacy breaches in practice.

With the rapid spread of COVID-19, the world has witnessed an extraordinary turn of events that could not have been anticipated. To keep operational, law firms have had to promptly adapt to a remote workplace model where employees are working from home. However, given the speed at which this arrangement was implemented, many organizations may not have had systems in place to insulate against the security risks that may arise.

Many employees working from home share equipment and spaces with other family members. Such settings can present situations of unattended documents and notes with sensitive information recorded. Additionally, electronic information may be accessed on devices that are not exclusively for the use of the authorized person. The device itself, may not be equipped with passwords and technical guards that are offered at an office. Employees are now presented with the challenge of discharging the same duties to secure confidential material, but without the infrastructure in place to do so. Therefore, the current climate of mass disruption, has made organizations particularly susceptible to privacy breaches or cyber attacks.

It is important for organizations to take immediate steps to ensure the protection of sensitive information. These steps include:

Updating and implementing security measures

• Employers need to update their privacy policies and procedures to reflect the current needs, issues, and solutions surrounding a remote workplace;
• Employers need to consider the risks of cyber attacks and have measures in place to respond to any security breaches;
• Employers need to invest in revamping their IT infrastructure to ensure employees have access to a secure remote platform. These measures may include providing a protected VPN connection to employees which encrypts confidential communication;
• Employers should utilize access-based security features such as a multi-factor authentication protocol to protect their employees’ accounts; and,
• Employers should closely monitor network-related activities to flag security breaches.

Training employees

• Employee training should focus on how to manage security risks from home. Some of these measures include the use of a secure location such a locked cabinet to limit the exposure of confidential information to family members;
• Employees should password protect all devices, and access confidential documents through a centralized and secured device; and,
• Employees should use electronic platforms enabled by the organization so they are connecting to the workplace network through a secure VPN connection that is protected by firewalls and antivirus software.

It is imperative to maintain the integrity of this profession by ensuring that the duty of confidentiality owed to our clients is not compromised under any circumstance. It is incumbent on the prudent organization and employee to jointly make best efforts to conduct our business as securely as possible.

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Contracts in the Time of COVID-19: Relying on Force Majeure Clauses

In response to the global pandemic of COVID-19, on March 17, 2020, Premier Doug Ford declared a state of emergency in Ontario, effectively banning people from most public spaces and outlawing events of over 50 people. The Federal Government also advised civilians to take extreme precautions by isolating themselves. As the world hinges on the rapidly changing news and national directives, we see a broad sweep of closures across many businesses. The unprecedented impact of this health crisis has permeated throughout almost every industry, leaving clients and lawyers to navigate unfamiliar territories. Clients now want to know how to protect themselves from contractual obligations that they or their vendors are unable to fulfill.

Force Majeure clauses

The principle of Force Majeure, also referred to as “acts of God”, may provide protection for extraordinary or unforeseen circumstances such as COVID-19. The Supreme Court of Canada defines this as follows:

An act of God clause or force majeure clause … generally operates to discharge a contracting party when a supervening, sometimes supernatural, event, beyond control of either party, makes performance impossible. The common thread is that of the unexpected, something beyond reasonable human foresight and skill, Atlantic Paper Stock Ltd. v. St. Anne-Nackawic Pulp & Paper Co., 1 S.C.R. 580 at para. 4 [Atlantic Paper].

Parties wishing to rely on this clause have the burden of establishing that the Force Majeure event has prevented the fulfillment of the contract. However, to rely on this provision, the contract must of course, contain the clause. Even then, that is only the start of the inquiry.

Considerations when evoking the Force Majeure provision

• Is the clause explicit enough to encompass events like COVID-19?
  Absent words such as “pandemic”, “health emergency”, “disease” and “national emergency” stated within the clause, courts may refuse to classify COVID-19 as a Force Majeure event. It is important to draft such clauses comprehensively.
• Did COVID-19 really cause the non-performance of the contract?
  The party relying on this clause must prove the event was one beyond their control. At this stage of the inquiry, in Atlantic Paper the court asked the following questions:
  1. Was the contract incomplete because of an unexpected event occurring after the date the contract was signed?
  2. Was the change so radical as to strike at the root of the contract?
  3. Were there alternative avenues available to complete the contract?

• What lead up to the need to evoke a Force Majeure clause?
  The courts may assess whether the Force Majeure event predated the contract, or if the clause was relied upon as a scapegoat for other negligence or unsound business decision. If the client contributed to the failure to perform the contract, the use of this clause may be jeopardized. A court may ask:
  1. Was the event foreseeable?
  2. Was performance impossible?

• What steps to mitigate the damage were taken?

Some contracts require a minimum level of effort to mitigate the damage before being able to rely on this clause. The duty to mitigate has a standard of commercial reasonableness.

If a court finds that the Force Majeure is valid, each party may be excused from their contractual obligations, or be entitled to a relief contemplated by the contract itself.

Many legal professionals disregard the importance of this clause because of its infrequent use. However, this epidemic serves as reminder that it is a lawyer’s duty to anticipate the unexpected and protect their client against it. A well-crafted contract should include an explicit Force Majeure clause, broad enough to encompass all unforeseen events; and in addition, contain the specific relief sought, should it occur. Think worst case scenario, and work backwards to the contract!

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