A couple can be living in a conjugal relationship even if they are living in different cities, according to a recent Federal Public Sector Labour Relations and Employment Board decision.

The Board found that the Department of Citizenship and Immigration was wrong to deny an Ottawa-based employee’s request for spousal relocation leave to join his partner in Vancouver, because the couple had not lived under the same roof for at least a year. The couple had lived together briefly in Ottawa and intended to relocate to Vancouver but, for personal and financial reasons, were unable to move at the same time.

The department’s collective agreement with the Public Service Alliance of Canada grants an employee leave to accommodate the relocation of a spouse or “common-law partner,” defined as a person “living in a conjugal relationship” with an employee continuously for at least a year. There is no requirement in the agreement that the couple cohabit for that entire period, the Board pointed out, only that the conjugal relationship has lasted more than one year. The Board concluded that an individualized assessment based on relevant factors, of which cohabitation is just one, is required to determine if a couple is, in fact, living in a conjugal relationship.

In this case, the Board was satisfied that, when the employee requested spousal relocation leave, the couple had been living in a conjugal relationship continuously for at least a year, even though they were living apart. The couple intended to have a common residence but were living separately mainly for financial reasons. Their relationship otherwise had the hallmarks of a common-law partnership. The factors the Board considered included the exclusivity of the couple’s relationship, the emotional and psychological support they provided to each other, their constant communication and, at considerable cost, their frequent visits across the country to see each other.

The Public Service Alliance of Canada was represented by Michael Fisher.

The Ontario Government announced its intention to expand the closure of all “non-essential” businesses on April 3, 2020 in response to the COVID-19 pandemic. The announcement included plans to extend the shutdown to April 17, 2020 and to include new workplaces on the list of businesses that must be temporarily closed.

But despite the media attention to this announcement, details of what exactly the shutdown means for employees have been few and far between, leaving many questions unanswered. For example, what businesses can stay open? And when can an employee be required to go into a closed workplace during the shutdown?

The starting point for understanding how the COVID-19 shutdown affects employees lies in the regulations that the Ontario Government has passed as part of its declaration of a state of emergency. Since March 17, 2020, the Government has passed a series of regulations under the Emergency Management and Civil Protection Act which have closed different kinds of Ontario business and workplaces for different periods of time.

The main regulation enforcing the current shutdown of non-essential businesses is O. Reg. 82/20, or the “Closure of Places of Non-Essential Business” regulation. It provides that all businesses which are not listed as essential in the regulation must be closed from 11:59PM on March 24, 2020 and for as long as regulations require.

1. Reg. 82/20 listed a number of types of businesses that are considered essential and which are allowed to remain open and operate as normal. This included certain kinds of retail business, such as grocery stores and gas stations; restaurants but only for the purposes of takeaway and delivery; support and maintenance services for buildings; IT and telecommunications companies; agricultural businesses, and others.

The most recent planned update to the “essential” business list will remove certain categories of business that were originally considered essential, forcing them to now close down. Workplaces which now must close include cannabis stores and producers; veterinary service providers, except those providing urgent care; automobile rental and leasing businesses; and office, hardware, and pet supply businesses. In addition, only critical construction projects are allowed to continue during the shutdown.

Any business which does not fall into one of the categories listed in O. Reg. 82/20 must generally close and remain closed until the shutdown is over. But O. Reg. 82/20 does allow for a few, narrow exceptions to this rule, including:

• A business does not need to shut down any work that can be done remotely, including shipping goods through the mail, by delivery, or for pick-up
• Employees can be required to go into a closed workplace to perform inspections, maintenance, or repairs
• Employee can still be required to go to a closed workplace in order to provide security services
• Employees can be required to temporarily attend a closed workplace to attend to “critical matters relating to the closure of the place of business, if the critical matters cannot be attended to remotely”
• Employees can be required to temporarily attend a closed workplace to access materials, goods or supplies necessary for the business to operate remotely

These rules about when employees can still be required to go in to work during the shutdown can be trumped by other employee rights, however. For instance, in some circumstances, employees may have a right to refuse unsafe work due to COVID-19, depending on their individual situation, regardless of whether the workplace is considered “essential” or not.

Where employees are required to stay home because their workplace is closed by the shutdown, they may have access to certain lay-off rights, as well as to new benefit packages that both the provincial and federal government are introducing to address the impact of the pandemic. Employees looking for information on the legal options available to them because of the shutdown should contact an employment lawyer to discuss their specific circumstances.

Currently, the planned end date for the Ontario shutdown is April 17, 2020, but the Government has a lot of leeway to change this plan as long as the provincial state of emergency continues. The shutdown can be lengthened or shortened, and new categories of “essential businesses” can be added at any time to respond to the rapidly changing circumstances in the province.

[Note: this information applies to non-unionized employees only. Unionized employees should consult their bargaining agent. This article is for informational purposes only and does not constitute legal advice, which requires an assessment of your individual circumstances.]

What do you do when your arbitration is coming up but no one can meet face to face? The answer, for a number of arbitrators, is that you find another way to hold the hearing.

There are many reasons a party may not want to go ahead with a hearing.  In some cases, a party can ask to postpone the date. Examples include the illness of a representative or of an important witness.  It is important to remember, though, that no one has a right to an adjournment, or a veto over going ahead with a hearing.  The same is true about the way the hearing is held.  Traditionally, everyone meets in the same physical location and the evidence is presented.  Unless there is something in the collective agreement though, it’s a tradition, not a legal requirement.

It is important to remember that the Arbitrator controls the process for getting the grievance resolved.  That means deciding when the hearing is held and how it is held.

Arbitrators Goodfellow, Johnston and Luborsky, in three separate and very recent decisions, refused requests for adjournments in circumstances where the parties could not be in the same location. As an example, arbitrator Goodfellow said in a Toronto Transit Commission case that:

I am, quite simply, not persuaded that there is any risk to the TTC of it not being able to put its best foot forward, factually, or of me being deprived of the most truthful and reliable evidence, legally, to fully and fairly adjudicate the issues in dispute, simply because Mr. Grimaldi (and, possibly, one other witness) will testify remotely with Ms. Rogers having testified in-person. Finally, to be clear, I am completely unpersuaded that any Zoom-related “privacy issues” have any meaningful role to play in the process.

It is not enough to say that there may be credibility issues, so the case must proceed in person.  Arbitrators have a wide range of things they can do to manage any hearing – including electronic hearings.  It is true that technology is not perfect and there will inevitably be some glitches.  On the other hand, the same could be said for many in-person arbitrations.

There will still be situations where an arbitrator will adjourn an arbitration and reschedule for a later date.  Arbitrator Misra did that when Mount Sinai Hospital asked to postpone the hearing.  In that case, though, she was dealing with a pay issue that had remained unresolved for two years and the hospital was scrambling to find the resources to deal directly with the consequences of COVID-19 on patients. The different result in that situation was understandable.

As with any other request, most arbitrators will balance various factors.  One of the most important is the significant interest the parties have in having cases decided quickly. Against that, the party asking to put off a hearing (usually the employer) will have to show real prejudice that would be caused by going ahead and using a new technology.  The arbitrator will consider real  difficulties that are caused by proceeding with a case, but an increase in the work required to prepare and present evidence will not likely be enough.

Parties will have to decide whether they want to go forward with their cases, and they may have legitimate reasons to agree to postpone.  On the other hand, as we navigate a new and challenging labour relations reality, remember that arbitrators may be sympathetic when someone says that the hearing must go on.

Our law firm pauses today to recognize the National Day of Mourning, a day to honour those who have been killed, injured, or made ill as a result of their work. Every worker has the right to a safe and healthy workplace. One workplace death, injury, or illness is one too many.

These extraordinary times remind us of the importance of a safe and healthy workplace. Sadly, many frontline workers around the world have died or become ill because of exposure to the coronavirus in their work. All of us at RavenLaw would like to express our incredible gratitude to the workers performing essential work during the COVID-19 pandemic. We will continue to fight on their behalf for adequate health and safety protections.

This week, the Government has started accepting applications from employers for the Canada Emergency Wage Subsidy (CEWS), part of the Government’s economic response to the COVID-19 pandemic crisis. This new benefit is unprecedented in scope and is likely to be well received by many employers and employees. However, the design of this benefit arguably leaves too much power in the hands of employers.

What is the CEWS?

The CEWS is a wage subsidy intended to help employers that are struggling due to COVID-19, allowing them to recall employees that have been laid off, and to avoid future layoffs. Eligible employers will receive a subsidy for up to 12 weeks between March 15 and June 6, provided they can show the required reduction in revenue for that period. The Government has not imposed any size limit on eligible employers and has extended the benefit to all types of businesses, as well as not-for-profit organizations and charities. Only public institutions, such as schools and hospitals, are excluded.

How much does the subsidy cover?

The subsidy will cover up to 75% of wages on the first $58,700 that an employee earns, up to a maximum of $847 a week. There are special calculations for employees whose pay has been reduced since before the crisis, and for non-arm’s length employees.

Employees who have been laid off can become eligible retroactively for the CEWS if the employer rehires them. However, if those employees have received the Canada Emergency Response Benefit (CERB), and they will earn more than $1000 per month as a result of being rehired, they will have to repay the CERB.

Does the CEWS give too much power to employers?

This program is new and therefore may be revised and adjusted in response to public criticism, similar to the CERB. The Government may want to consider some of the ways in which this program’s design places too much power in the hands of employers.

No obligation on employers to pay remaining 25% of wages

The Government is not requiring employers to pay the remaining 25% of employees’ wages as a condition of eligibility for the CEWS. The Government has stated publicly that it “expects” employers to make best efforts to pay the remaining salary amounts, but it is unclear whether there will be any mechanism to enforce that expectation. As a result, there is a concern that many employers will recall employees at only 75% of their previous pay rate, or even potentially reduce the pay of existing employees. This program should obviously not create an incentive for employers to pay their workers less.

Employers decide the level of government benefit for workers

The CEWS (up to $847 per week) is a far more valuable benefit than the CERB ($500 per week). A worker who has been laid off due to COVID-19 is only eligible for the CERB, but that worker’s employer could choose to rehire them solely for the purposes of accessing the CEWS, thereby granting that worker access to a significantly larger benefit.

This program therefore gives a huge amount of power to employers to basically decide how much financial relief their workers will receive during this crisis. One way to fix this flaw is to increase the value of the CERB to make it equivalent to the CEWS.

Will the CEWS strengthen a claim of constructive dismissal?

While the CEWS appears to place workers at the mercy of their employers in many respects, one way in which it may hand some power back to workers is in claims for constructive dismissal.

Many employment law experts have questioned how courts will consider claims of constructive dismissal in these extraordinary circumstances. Some argue that the COVID-19 crisis may justify greater changes to the employment relationship than have previously been accepted, on the theory that a reasonable person in the employee’s position would not consider the change to amount to a dismissal in this unique context.

The CEWS offers significant relief to employers in meeting payroll obligations, and so it may play a role in the constructive dismissal analysis. A reasonable employee may, for example, consider themselves constructively dismissed if they are laid off or have their wages reduced, if the employer cannot prove that these changes were necessary despite the presence of the CEWS benefit.

These questions, unfortunately, will not be answered by the courts for some time. Therefore, it is important for employees to obtain legal advice before claiming constructive dismissal, to fully understand the risks and consequences.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]

The firm gratefully acknowledges the contribution to this post by articling student Zachary Rodgers.

The Office and Professional Employees International Union (OPEIU), represented by Wassim Garzouzi, recently scored a major victory for the privacy rights of workers across Canada. On December 9, 2019, Arbitrator Susan Ashley affirmed that employers in Canada cannot unilaterally impose random drug and alcohol testing on its unionized employees, despite the legalization of cannabis and the uniquely dangerous nature of the work in question.

The employer in this case, a helicopter company providing passenger transport to offshore oil operations, sought to initiate random drug and alcohol testing of its helicopter pilots (and other employees in safety sensitive positions) following the legalization of cannabis in Canada. At the time, the employer already had a robust drug and alcohol policy in place that allowed it to test employees in safety sensitive positions if there was reasonable cause to suspect the employee was under the influence of drugs or alcohol. The Union took no issue with “for cause” testing. The only issue at arbitration was whether the employer could force employees to submit to drug and alcohol testing at random (i.e. without cause).

The Union successfully argued that Canadian courts and arbitrators have long rejected random testing as an unreasonable violation of individual privacy rights. In Irving Pulp & Paper Ltd, the Supreme Court of Canada concluded that even in workplaces where safety is paramount, random testing is too great an infringement on employee privacy rights if there is no existing and pervasive problem of drug and alcohol use in the workplace.

Arbitrator Ashley rejected the employer’s argument that the legalization of cannabis in Canada had changed the legal landscape. She equally rejected the employer’s position that the uniquely dangerous work of flying helicopters offshore justified the violation of employees’ privacy rights. Significantly, the arbitrator found that, although oral swab testing is less invasive than other methods of drug testing, it still amounts to “an unjustified affront to the dignity and privacy rights of the affected employees.”

This award, in favour of the Union, is one of the first post-legalization decisions in Canada that affirms the Canadian model, which requires employers to demonstrate an existing and pervasive alcohol or drug problem in the workplace before random testing can be justified. Importantly, employers cannot rely on the legalization of cannabis to justify upending the status quo on drug testing in Canadian workplaces.

RavenLaw congratulates OPEIU on its hard-fought and successful defence of employee privacy rights in Canada.

Since our post on the introduction of the Canada Emergency Response Benefit (CERB) (which you can read here), the federal government has announced changes to the program to address some of the identified gaps in eligibility. Based on these most recent changes, many more individuals should qualify to receive the CERB. This post will outline who is now eligible, and who is still left out, of this important benefit.

What is the CERB?

The CERB is a benefit to replace income lost due to the COVID-19 pandemic. It is a flat, taxable amount for all eligible claimants: $2,000 for every four weeks you are eligible, up to a maximum of 16 weeks, between March 15 (retroactive) and October 3, 2020.

What has stayed the same?

To qualify for the CERB, you still need to be a resident of Canada of at least 15 years of age, and must have had at least $5,000 in income from work (employment or self-employment), EI maternity or parental benefits, or Quebec’s parental benefits program QPIP in the last year. These requirements have not changed with the expansion of the program.

What has changed?

Some of the eligibility criteria have been expanded, to allow more individuals to qualify for the CERB:

• You are no longer required to have had NO income from employment, self-employment, any EI or QPIP benefit for at least 14 days in a row. Instead, you can qualify for the CERB if you earned less than $1,000 in an eligibility period (that period is at least 14 days in a row if you are applying for the first time, and 4 weeks if you are applying again for a subsequent period).
• You can also qualify for the CERB if you are a seasonal worker who has exhausted your regular EI benefits, and are unable to undertake your seasonal work due to COVID-19. You must have received EI benefits for at least one week since December 29, 2019.
• Finally, you may qualify for the CERB if you have recently exhausted your regular EI benefits, and are unable to find work due to COVID-19. Again, you must have received EI benefits for at least one week since December 29, 2019.

These changes are retroactive to March 15.

Who is still left out?

The expansion of the CERB is welcome news, but, unfortunately, even the expanded version of this program still contains gaps that will leave many Canadians without access to this benefit.

Workers making $1,000 – $2,000 per month

One of the most important and much-needed changes to this program was to expand it to include workers who had experienced a significant reduction in hours, but who were still earning some income. Workers can now earn up to $1,000 per month and still access the CERB.

However, there is still an obvious gap in the program’s design—there are many workers who will be earning less from their employment than the value of the CERB, and yet they continue to be excluded from this benefit. It is unclear why the government did not expand access to all workers making less than the value of the CERB ($2,000 every four weeks), and simply deduct any amounts earned from the benefit.

Students seeking summer employment

As noted in our previous post, many students who were counting on employment during the summer months will not be able to find jobs due to the pandemic. However, because they did not lose a current source of income, they will not qualify for CERB, and most of them are unlikely to have been receiving EI regular benefits recently. Students who are about to graduate and were about to enter the job market will not have access to this benefit.

The government has reiterated that more help may be on the way for students, but no specifics have been provided so far.

Workers who have been unemployed for a long period

The benefit has been extended to anyone who has exhausted their EI regular benefits, only if they have received at least one week of EI benefits after December 29, 2019. Therefore, any unemployed workers who ran out of EI benefits before that time are still ineligible for the CERB.

Is it time for a universal benefit?

The most recent changes to the CERB will be met with criticism and questions about who continues to be left behind, in response to which the government will in all likelihood tweak the program further. Instead of the current piecemeal, incremental approach, many have called on the government to simply grant a $2,000 per month benefit to all Canadians, and reclaim it from those who did not need it through taxes next year. It remains to be seen whether this view will gain any traction within the government.

Updated information about the CERB and how to apply can be found here.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]

Workers infected with COVID-19 “out of and in the course of” their employment are entitled to benefits under the Ontario Workplace Safety and Insurance Act, 1997, including for lost wages, healthcare costs and permanent impairments arising from the disease. If a worker contracted COVID-19 outside of work, they will not be eligible for such benefits.

Worker’s compensation benefits are only available to workers who have symptoms of COVID-19, according to the agency that decides worker’s compensation claims, the Workplace Safety and Insurance Board (WSIB). WSIB’s policy indicates that benefits will not be available for those who are caring for others or who are self-isolating without any symptoms. This approach may not hold where an individual, despite being asymptomatic, ultimately tests positive for COVID-19 that is linked to the workplace.

WSIB considers two main questions to determine whether a worker’s symptoms are work related. First, did the worker’s employment create a risk of contracting the disease to which the public at large is not normally exposed?

In answering that question, WSIB will consider whether

• A contact source to COVID-19 within the workplace has been identified;
• The nature and location of employment activities place the worker at risk for exposure to infected persons or substances; and
• There was an opportunity for transmission of COVID-19 in the workplace via a compatible route to transmission.

Information about the work environment, the worker’s job duties and the use of personal protective equipment are relevant to answering that question.

Second, has the worker’s COVID-19 condition been confirmed? WSIB will determine that question by considering whether

• The time from the date of the exposure and the onset of the illness are clinically compatible with COVID-19 established to exist in the workplace; and
• There is a medical diagnosis and, if not, whether the worker’s symptoms are clinically compatible with symptoms produced by COVID-19.

There may be other relevant factors and WSIB will decide each claim on its own merit, having regard to the worker’s individual circumstances.

Workers may be exposed to COVID-19 in and out the workplace. A worker is entitled to benefits if it can be proven that work-related duties or requirements were a significant contributing factor to the worker contracting the disease.

Workers experiencing confirmed symptoms of COVID-19 and unable to work may report their illness to WSIB, in addition to reporting these symptoms to their employer.

Not all Ontario workers are covered by WSIB, however. If you are unsure of your eligibility, you can contact WSIB for more information, or contact our firm to discuss your situation further.

[Note: this information applies to non-unionized employees only. Unionized employees should consult their bargaining agent. This article is for informational purposes only and does not constitute legal advice, which requires an assessment of your individual circumstances.]

The Government of Canada has started accepting applications for the Canada Emergency Response Benefit (CERB) this week, as part of its response to the COVID-19 pandemic crisis. While this benefit is going to provide crucial support to many who have lost income due to the pandemic, there are lingering questions about who has been excluded from the benefit, and whether the Government will provide further support to those who have been left out.

What is the CERB?

The CERB is a benefit to replace income lost due to the COVID-19 pandemic. It is a flat, taxable amount for all eligible claimants: $2,000 for every four weeks you are eligible, up to a maximum of 16 weeks, between March 15 (retroactive) and October 3, 2020.

Who is eligible for the CERB?

To qualify for the CERB, you must be a resident of Canada of at least 15 years of age, and must:

• Have had at least $5,000 in income from work (employment or self-employment), EI maternity or parental benefits, or Quebec’s parental benefits program QPIP in the last year; AND
• Have had NO income from employment, self-employment, any EI or QPIP benefit for at least 14 days in a row.

Who is NOT eligible for the CERB?

There are unfortunately many people excluded from this benefit, despite also being significantly impacted by the COVID-19 pandemic.

Workers with reduced hours/income

Many workers have not lost all of their income due to the pandemic, but have seen a dramatic drop in their hours of work. Since they still have some level of income, they are ineligible for the CERB—this is true even if their income from employment is less than the value of the CERB.

Students seeking summer employment

Many students who were counting on employment during the summer months will not be able to find jobs due to the pandemic. However, because they did not lose a current source of income, they will not qualify for CERB. Similarly, students who are about to graduate and were about to enter the job market will not have access to this benefit.

Seasonal and unemployed workers

Like students, many workers have seasonal jobs, and therefore have not lost current income. Instead, they have lost or are likely to lose out on expected employment in the coming months. These workers do not fit the criteria for the CERB.

And, of course, any workers who are currently unemployed will not qualify for the CERB, and may be at or near the end of their EI benefits with no reasonable prospect of future employment.

More help may be on the way

The Government has received numerous inquiries about the gaps in the eligibility for the CERB, and has assured Canadians that additional help will be coming for these groups. Prime Minister Trudeau has publicly stated that the Government is exploring ways to help everyone in Canada that needs it, and should have more to say in the coming days about additional supports. He has specifically referred to forthcoming help for students, and to the possibility of extending the CERB to cover workers with reduced hours.

Updated information about the CERB and how to apply can be found here.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]

RavenLaw is proud to welcome two new lawyers to our team: Sean McGee and Alison McEwen.

Sean practises in the areas of Labour Law, Employment Law, and Litigation. He represents unions across Canada, with a focus on Ottawa, Eastern Ontario, and Toronto. For more information about Sean, visit: https://ravenlaw.com/people/sean-mcgee.

Alison practices in the areas of Labour Law, Employment Law, and Litigation. She also represents unions across Canada, with a focus on Ottawa and Eastern Ontario. For more information about Alison, visit: https://ravenlaw.com/people/alison-mcewen.