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Coronavirus (COVID-19) : Changements législatifs que les employeurs canadiens doivent connaître – et les réponses aux questions que vous vous posez

Date et heure:

Vendredi 20 mars 2020
Midi – 13 h (HAE)
10 h – 11 h (HAR)
 9 h – 10 h (HAP)

Notre groupe de droit du travail vous invite à un webinaire d’une heure sur les enjeux que la pandémie de COVID-19 soulève dans les milieux de travail. Le webinaire de la semaine dernière portait sur des questions de santé et de sécurité, de protection des renseignements personnels et de continuité des activités commerciales.

Cette semaine, nous reviendrons brièvement sur certains points abordés la semaine dernière et nous traiterons également des sujets suivants :

  • Les nouvelles lois ayant été annoncées ou adoptées cette semaine
  • Nos réponses aux questions les plus fréquentes

Cette activité se déroulera en ligne et en anglais seulement.

Modératrice

Conférenciers

Demandes de renseignements

Veuillez communiquer avec Justine Moller, coordonnatrice, Événements et prospection de clients par courriel à l’adresse justine.moller@dentons.com ou par téléphone au +1 416 863 4560.

Inscrivez-vous maintenant 

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Coronavirus (COVID-19) : Changements législatifs que les employeurs canadiens doivent connaître – et les réponses aux questions que vous vous posez

Coronavirus (COVID-19): Legal update for Canadian employers – and your questions answered

Date and time:

Friday, March 20, 2020
12 – 1 p.m. ET
10 – 11 a.m. MT
 9 – 10 a.m. PT

Join Dentons’ Employment and Labour group for a complimentary one hour follow-up webinar on workplace issues relating to Coronavirus (COVID-19). Last week’s seminar covered health and safety issues, privacy issues and business continuity issues.

This week’s coverage will include a high-level summary of last week’s topics, plus:

  • New laws announced or passed this week
  • Answers to most frequently asked questions

This webinar will be presented in English only.

Moderator

Speakers

Questions

Please contact Justine Moller, Coordinator, Client Development and Events, at justine.moller@dentons.com or +1 416 863 4560.

Register now

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Coronavirus (COVID-19): Legal update for Canadian employers – and your questions answered

An overview of United States travel restrictions due to the COVID-19 outbreak (United States)

President Trump has recently issued several Presidential Proclamations in response to the 2019 Novel Coronavirus (COVID-19) outbreak, which have restricted the ability of foreign nationals to travel to the United States. A summary of the US travel restrictions that have resulted from the COVID-19 outbreak (that the World Health Organization declared a pandemic on March 11, 2020) is available on Dentons.com

Read more

An overview of United States travel restrictions due to the COVID-19 outbreak (United States)

Special measures implemented for certain foreign nationals and immigration applicants affected by COVID-19

As coronavirus disease 2019 (COVID-19) continues to spread globally, applicants for Canadian immigration benefits located in certain countries have experienced a number of disruptions with respect to the processing of their applications.  Such disruptions include: (1) the closure of visa application centres, (2) service interruptions at Canadian visa offices, (3) travel plan disruptions, (4) limited access to local government offices and business, and (5) limited access to designated physicians for the completion of mandatory medical examinations.

On February 7, 2020, Immigration, Refugees and Citizenship Canada (IRCC) implemented its first set of special measures for temporary and permanent resident applicants located in China, as well as for approved applicants in China unable to travel.  These special measures were expanded to similar applicants in Iran and South Korea on February 29, 2020.

Currently, IRCC’s special measures grant accommodations to the following individuals:

  • Chinese, Iranian or South Korean nationals; or
  • Foreign nationals located in China, Iran or South Korea; and
  • Who are affected by service disruptions or travel restrictions related to COVID-19.

The special measures are intended to provide flexibility for those who, due to the above disruptions, are unable to meet or comply with certain requirements.  With respect to applications still in processing, IRCC has stated that it will not refuse or close an application due to a lack of documentation.  By way of example, IRCC will grant automatic 90 day extensions beyond the usual deadline for complying with procedural requirements, including:

  • The completion of biometrics, which involves attending a visa application centre to provide fingerprints and a photograph;
  • The completion of a mandatory medical examination with an IRCC-approved panel physician;
  • The submission of supporting documents (ex. police certificates); and
  • The submission of a passport once an application has been approved.

Accommodations are also being provided to foreign nationals whose applications for permanent residence have recently been approved, but are unable to travel to Canada due to COVID-19.  Once an application for permanent residence has been approved, a document known as a Confirmation of Permanent Residence (COPR) is issued, and the foreign national must present this at a Canadian port of entry within a limited timeframe in order to complete the process of “landing” as a permanent resident.  The expiry date noted in one’s COPR cannot normally be extended.  However, IRCC’s special measures will allow for the consideration of extenuating circumstances related to COVID-19, which should facilitate the continuation of the landing process beyond the expiry of a COPR.

Applicants for Canadian citizenship unable to travel to Canada for purposes of attending crucial citizenship events and appointments may also be provided with limited accommodations, so long as the inability to travel is sufficiently related to COVID-19.  Such events and appointments include: (1) attending the citizenship knowledge test or retest, (2) attending the citizenship interview, (3) attending a hearing, or (4) taking the Oath of Citizenship.  However, in order to be eligible for an accommodation, IRCC must be notified of the inability to travel within 30 days of missing the event or appointment. 

In some cases, applications related to temporary or permanent residence may be approved or granted on an urgent basis.  For foreign nationals who require a visitor visa, study permit, or work permit in order to travel to Canada urgently due to exceptional circumstances, IRCC will consider these applications on a case-by-case basis.  Similarly, for those permanent residents who do not possess a currently-valid Permanent Resident Card, IRCC will also consider urgent requests for a permanent resident travel document on a case-by-case basis.

Special measures implemented for certain foreign nationals and immigration applicants affected by COVID-19

Coronavirus (COVID-19): Employer obligations, options and strategies

Date and time:
Friday March 13, 2019

12 – 1 p.m. ET
10 – 11 a.m. MT
9 – 10 a.m. PT

This session is only available via webinar

LSBC: This session is registered for 1 hour of CPD credit with the Law Society of British Columbia.

LSO: This program is eligible for up to 1 Substantive Hour with the Law Society of Ontario.

Barreau du Québec: An application for verification of eligibility has been submitted to the Barreau du Québec.

Join Dentons’ Employment and Labour group for a complimentary one hour webinar on workplace issues relating to Coronavirus (COVID-19). 

Topics will include:

  • Health and safety issues – Employer obligations and best practices
  • Privacy issues – How to balance health & safety with privacy considerations
  • Business continuity issues – Keeping the lights on in the event of a pandemic

Please confirm your attendance by Thursday, March 12, 2020.

Speakers

Questions

Please contact Justine Moller, Coordinator, Client Development and Events, at justine.moller@dentons.com or +1 416 863 4560.

Dentons Canada LLP is committed to accessibility for persons with disabilities. Please contact us at dentonscanada.events@dentons.com in advance of the event if you have any particular accommodation requirements. We will work with you to make appropriate arrangements.

Register now

Coronavirus (COVID-19): Employer obligations, options and strategies

When Failsafe Language Fails: The Ontario Court of Appeal on the Enforceability of Termination Provisions

On August 30, 2019, the Ontario Court of Appeal dismissed the employer’s appeal in Andros v. Colliers Macaulay Nicolls Inc.[1] The Court of Appeal’s decision affirmed a Motion Judge’s finding that a termination provision which provided for severance entitlements below the Employment Standards Act, 2000 (the “ESA”) minimums was not saved by the “failsafe” language included in the termination provision.

This decision adds to a long line of decisions on the enforceability of termination provisions.

Background

The employer in this case, Colliers Macaulay Nicolls Inc., hired the Plaintiff, Mr. Demetri Andros, pursuant to the terms of a written employment agreement containing the following termination provision:

4. Term of Employment

The Company may terminate the employment of the Managing Director by providing the Managing Director the greater of the Managing Director’s entitlement pursuant to the Ontario Employment Standards Act or, at the Company’s sole discretion, either of the following:

  1. Two (2) months working notice, in which case the Managing Director will continue to perform all of his duties and his compensation and benefits will remain unchanged during the working notice period.
  2. Payment in lieu of notice in the amount equivalent of two (2) months Base Salary. [Emphasis added]

Upon terminating Mr. Andros’ employment without cause, the company provided Mr. Andros with all of his ESA entitlements, but nothing more. Mr. Andros commenced an action for wrongful dismissal alleging, among other things, that the termination provision in the employment contract was unenforceable.

Mr. Andros argued that the termination provision was unenforceable on the basis that it attempted to contract out of the requirements of the ESA by failing to provide severance pay under 4(a) and failing to provide for severance pay or benefits under 4(b).

The parties agreed to proceed before a Motion Judge by way of summary judgement motion.

The Motion Judge’s Decision

At the summary judgement motion, the company argued that the first part of the clause, which specifically referred to the provision of ESA entitlements also applied to parts 4(a) and 4(b) by virtue of the fact that the whole clause insisted on the “greater” of the entitlements being provided.

The Motion Judge rejected this argument, finding that neither 4(a) nor 4(b) clearly provided ESA entitlements. At best, 4(a) and 4(b) were ambiguous as to the inclusion of ESA entitlements. The Motion Judge then noted that where a termination provision is unclear or ambiguous, courts should prefer the interpretation that favours the employee. The Motion Judge adopted the interpretation of 4(a) and 4(b) in which Mr. Andros was deprived of his ESA entitlements and found the entire provision unenforceable.

In the result, Mr. Andros was awarded a reasonable notice period of eight months.

The Ontario Court of Appeal’s Decision

On appeal, the company relied on the Court of Appeal’s 2018 finding in Amberer v. IBM Canada Ltd that that the failsafe language effectively modified the rest of the termination provision to read it up to comply with the ESA.[2] The failsafe language at the end of the provision stated,  

In the event that the applicable provincial employment standard legislation provides you with superior entitlements upon termination of your employment (“statutory entitlements”) than provided for in this offer of employment, IBM shall provide you with your statutory entitlements in substitution for your rights under this offer of employment.[3]

The Court of Appeal rejected the company’s appeal of the award in favour of Mr. Andros. In response to the company’s reliance on Amberer, the Court of Appeal found that the termination provision in Mr. Andros’ employment contract was fundamentally different from the termination provision in Amberer. In the case of Mr. Andros’ employment contract, the reference to ESA entitlements was “stranded in the first clause” by virtue of the disjunctive “or” and as such, did not serve as failsafe language to ensure that ESA entitlements would be included as part of the entitlements set out parts 4(a) and 4(b).[4] 

Takeaway for Employers

Although the Ontario Court of Appeal did distinguish this decision from its decision in Amberer v. IBM Canada Ltd., it did not overturn the earlier decision. As such, employers should follow the guidance provided in Amberer v. IBM Canada Ltd., and ensure that failsafe language applies to the entire termination provision rather than providing a “greater of” or “either or” entitlement.  


[1] Andros v. Colliers Macaulay Nicolls Inc., 2019 ONCA 679 [Andros].

[2] Amberer v. IBM Canada Ltd., 2018 ONCA 571 at para. 54 [Amberer].

[3] Ibid at para. 6.

[4] Andros at para. 30.

When Failsafe Language Fails: The Ontario Court of Appeal on the Enforceability of Termination Provisions

Update on Canada’s ability to collect traveller data during entries/exits

The Entry/Exit Program is a joint initiative between Canada and the United States.  Implemented on June 30, 2013, it enables Canada Border Services Agency (“CBSA”) officers to collect information on foreign nationals (excluding U.S. citizens) who exited the country via land border crossing into the United States. 

Currently, the Customs Act[1] enables CBSA to record entries and exits via land border crossing for all travellers (including both Canadians and Americans), as well as entries by air.  CBSA is therefore able to maintain travel records which capture entries for all travellers by air and land, but only exits via land border crossings. 

Of course, as many travellers exit Canada by air, these travel records are largely incomplete.  However, CBSA’s access to traveller information will be further expanded as a result of Bill C-21, An Act to amend the Customs Act, which received Royal Assent on December 13, 2018.  Bill C-21 will enable Canada and the United States to exchange basic biographic entry data on all travellers entering into their respective countries.  Entries into one country will therefore indicate an exit from the other, and this information will be shared. 

CBSA and its United States counterpart, U.S. Customs and Border Protection, have entered into an information sharing memorandum of understanding, which includes safeguards and protections for the exchange of travellers’ biographic entry data.  The biographic data collected on each traveller during exits by land border crossing includes: (1) name, (2) date of birth, (3) nationality, (4) sex, (5) travel document type, (6) travel document number, (7) name of country that issued the travel document, (8) date and time of exit, and (9) name of land border crossing used during exit.  

Significantly, once the regulatory amendments and related information sharing arrangements are in effect (expected to take place in June 2020), CBSA will also be able to record exits by air for all travellers.  In this regard, exit information will be obtained directly from air carriers through passenger manifests. 

In summary, once fully implemented, Bill C-21 will enable CBSA to maintain accurate and increasingly complete travel records for all travellers.  More specifically, information on the date, time, flight information, and location of departure by air will soon be recorded for all travellers departing on outbound international flights, in addition to the biographic data noted above.  However, this information will not be shared with the United States under the current version of the joint Entry/Exit Program.

The stated purpose of the Entry/Exit Program, as well as CBSA’s broader ability to record the biographic data on travellers entering and exiting the country, is to maintain a strong and secure border.  Indeed, it does allow for the tracking of known high-risk travellers, and enables action on time sensitive situations, such as locating abducted children or runaways.  However, this information is also used in connection with the more common traveller.  Such routine uses of entry and exit data include:

  • Identifying individuals who remain in Canada beyond their authorized period of stay;
  • Determining whether applicants meet residency requirements for purposes of citizenship and permanent residency applications (including those applicants who seek to renew their permanent residence cards on an on-going basis); and
  • Verifying travel dates for purposes of applying duty and tax exemptions.

Canadian citizens, permanent residents of Canada, as well as foreign nationals currently present in Canada, can request their Travel History Report from the CBSA under the Privacy Act.[2]


[1] R.S.C., 1985, c. 1 (2nd Supp.).

[2] R.S.C., 1985, c. P-21.

Update on Canada’s ability to collect traveller data during entries/exits

Coronavirus in Canada – What you Need to Know, Now!

Many Canadians will recall the Severe Acute Respiratory Syndrome (SARS) outbreak of 2003. Now, some 17 years later, we are faced with yet another highly-contagious and potentially deadly respiratory virus – novel Coronavirus. Having spread to more than 27 countries, the World Health Organization declared it a global health emergency on January 30, 2020.   

The media has been littered with stories about how to recognize the symptoms and warnings of potential risks.  The question remains – what can we do to protect our workplaces?

Be Prepared

While the world struggles to grapple with this novel and deadly emerging virus, employers can take the following steps to prepare and protect their employees and workplaces and limit their own liability:

  1. Ensuring company-wide best practices are up to date. Employers should maintain an up-to-date emergency contact list, provide hand sanitizer throughout the workplace, implement reasonable travel restrictions, and keep the lines of communication open about these practices.
  2. Confirming what resources are available to assist employees who may have contracted Coronavirus. Employers should confirm whether their group STD coverage will cover employees who are home sick with Coronavirus, home looking after a family member with Coronavirus and/or employees who may not have Coronavirus but who are in quarantine.
  3. Enacting temporary measures to protect employees.
    • Because Coronavirus can be confused with the regular flu in some cases, in order to ensure that employees who may have Coronavirus do not return to the workplace and infect other employees, employers may want to consider insisting on a medical note from employees who have been home with the flu, confirming that they are safe to return.
    • Employers may also consider implementing a temporary work from home policy.
    • Employers may want to consider asking visitors to the workplace to confirm in advance whether they have had flu-like symptoms or may have had contact with individuals infected with Coronavirus.
  4. Understanding statutory obligations and protections. These protections relate to various considerations in the face of an outbreak:
    • Employers will want to know whether illness or quarantine-related absences are protected pursuant to applicable federal or provincial statutory leave provisions.
    • Employers will also want to be aware of their applicable federal or provincial statutory leave obligations toward employees who need to care for ill family members.
    • It will be important to understand employee health and safety rights pursuant to Occupational Health and Safety legislation, which may include the right of employees to refuse to attend work if concerned about their health.
    • Employers may want to refresh their familiarity with human rights laws which, among other things, prevent discrimination on the basis of ethnicity or disability.
  5. Having a plan.
    • Employers may want to develop a plan for obtaining and implementing local health directives.
    • Such a plan should also address who would be responsible for issuing communications from the employer and how the employer will communicate with its employees in the event of an emergency.
    • In order to protect the work premises, the plan should include steps to ensure that the facility is secure in the event of a reduced staff or unanticipated shut down.

If you would like further information about the recommendations provided, the legislative protections in place in your region or practical steps to protect your workplace in the face of workplace health concerns, please contact members of our Employment and Labour Group.

Coronavirus in Canada – What you Need to Know, Now!

Employment and labour law trends to watch for in 2020

Date and time:Start: February 11, 2020, 12:00 PM EDT

End: February 11, 2020, 1:00 PM EDT

This seminar is available in the following time zones:

12 a.m. – 1 p.m. EDT

10 a.m. – 11 a.m. MT

9 a.m. – 10 a.m. PT

This session is only available via webinar

CPD/CLE Accreditation

LSBC: This session is registered for 1 hour of CPD credit with the Law Society of British Columbia.

LSO: This program is eligible for up to 1 Substantive Hour with the Law Society of Ontario.

Barreau du Québec: An application for verification of eligibility has been submitted to the Barreau du Québec.

Join us for a complimentary 1 hour webinar where we’ll highlight and identify the changes in Employment and Labour law that you need to know about and the trends that can be expected to impact your workplace in 2020.

Topics will include:

  • Tips for Avoiding Employment Liability in 2020
  • Telecommuting: Considerations when Employees are Working Remotely
  • Ending the Employment Relationship of Long Service Employees – Pensions, Benefits and Compensation Strategies
  • Where are we going with notice periods?!

Please confirm your attendance by Friday, February 10, 2020.

Speakers

Questions

Please contact Justine Moller, Coordinator, Client Development and Events, at justine.moller@dentons.com or +1 416 863 4560.

Register now

Employment and labour law trends to watch for in 2020

Hot topics and recent developments in labour and employment law

Date and time: November 26, 2019

12 p.m. – 1 p.m. ET
10 a.m. – 11 a.m. MT
9 a.m. – 10 a.m. PT

This session is only available via webinar

LSBC: This session is registered for 1 hour of CPD credit with the Law Society of British Columbia.

LSO: This program is eligible for up to 1 Substantive Hour with the Law Society of Ontario.

Join us for a complimentary 1-hour webinar where we will highlight the changes you need to know about and identify the trends that we expect to affect your workplace in 2019.
Topics will include:

  • Managing Harassment Investigations under the OHSA: Requirements and Pitfalls
  • A Case Law Update on Sexual Harassment
  • Creating Enforceable Contracts: Consideration in the Employment Context

Please confirm your attendance by Thursday, November 21.

Speakers

Questions

Please contact Carla Vasquez, Events Manager, at carla.vasquez@dentons.com or +1 416 361 2377.

Register now

Hot topics and recent developments in labour and employment law