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    • Month: May 2021

    Temporary Layoffs during COVID-19 Can Amount to Constructive Dismissal under Common Law – Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076 (CanLII)

    In earlier blog posts, which can be found here and here, we wrote about the implications of Regulation 228/20 (the “Regulation”), enacted pursuant to the Employment Standards Act, 2000(the “ESA”).  The Regulation states that non-unionized employees who had their hours reduced or eliminated due to COVID-19 are deemed retroactively to be on Infectious Disease Emergency Leave.  Section 7 of the Regulation states that a temporary reduction or elimination of an employee’s work hours and/or wages due to COVID-19 will not constitute constructive dismissal during the “COVID-19 period”, which currently lasts until July 3, 2021. 

    The issue that remained unresolved was whether the Regulation also prevented an employee from advancing a claim for constructive dismissal at common law.

    In general, for the common law to be altered by statute, there would need to be express language in the statute to that effect. 

    In Coutinho, an employee was placed on temporary lay-off in May 2020 due to the closure of her workplace during the pandemic. The plaintiff commenced an action against the employer claiming damages for constructive dismissal at common law, along with punitive and aggravated damages. Relying on section 7 of the Regulation, the employer argued that the plaintiff was deemed to be on Infectious Disease Emergency Leave and that the temporary reduction of her duties and work hours did not constitute a constructive dismissal at common law.

    The Ontario Superior Court was asked to consider whether a temporary reduction in hours of work and/or wages constitutes constructive dismissal at common law, despite the Regulation.

    Scope of Regulation 228/20 under the ESA

    The defendant argued that due to the unprecedented emergency caused by COVID-19, section 7 of the Regulation should be interpreted to apply not only to constructive dismissals for the purposes of the ESA but also at common law. The Court found that the scope of section 7 of the Regulation must be interpreted with section 8(1) of the ESA which provides that “no civil remedy of an employee against his or her employer is affected by this Act.” The Court determined that the scope of the Regulation was constrained by its enabling legislation and could not be interpreted in the same manner as a statutory provision.

    In support of this interpretation, the Court considered an online publication of the Ontario Ministry of Labour, Training, and Skills Development, which states that the Regulation affects only what constitutes a constructive dismissal under the ESA and does not address what constitutes a constructive dismissal at common law.

    Constructive Dismissal Under Common Law

    While the Regulation precluded the plaintiff from pursuing damages under the ESA, the Court determined that the Regulation did not prevent the plaintiff from pursuing a claim for constructive dismissal at common law. Under the common law, unless expressly stated in an employment contract, an employer does not have a right to temporarily lay off an employee, even if the employer complies with the provisions of the ESA. The Court found that the plaintiff was entitled to treat the company’s unilateral imposition of the layoff as a termination at common law and therefore the employee had the right to sue for constructive dismissal.

    This decision confirms that the Regulation to the ESA has no effect on an employee’s common law right to assert that a reduction in hours of work and/or wage constitutes a constructive dismissal, thus entitling them to wrongful dismissal damages. In light of the Court’s ruling, many temporary layoffs due to COVID-19 could be considered unlawful and may entitle employees to damages.

    “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
    By Fauzan SiddiquiBlog, Employment Law

    Be Prepared for In-Person Medical Examinations – Personal Injury: Mierzejewski v Brook, 2021 ONSC 2295

    During the COVID-19 pandemic, many in the legal profession began transitioning their practice online with the widespread use of Zoom for hearings, trials, examinations for discovery, etc. However, the courts may require plaintiffs to attend in-person medical examinations in personal injury cases despite public health concerns.

    In Mierzejewski, the defendant brought a motion seeking an order compelling the plaintiff to attend a neuropsychology defence medical examination and a physiatry defence medical examination, both of which would be conducted in person. The plaintiff did not agree to attend a neuropsychological examination on the basis that she did not place any brain injury or head trauma at issue. While the plaintiff agreed to the physiatry examination, the main issue was the form that the examination will take. The plaintiff argued against attending an in-person medical examination, citing the ongoing COVID-19 pandemic and her compromised health situation which included a heart attack and subsequent heart surgery in 2016, breast cancer in 2017, and a lumpectomy in 2018. The plaintiff does not leave her home unless necessary.

    The Ontario Superior Court was asked to consider whether the plaintiff must attend the neuropsychological medical examination and if so, whether the plaintiff must attend both medical examinations in person.

    Physiatry Examination

    The plaintiff argued that her numerous health conditions placed her in the high end risk category to contract COVID-19 and suffer serious health consequences. One of the plaintiff’s doctors advised that physiatry examinations could not be completed virtually and it would be irresponsible for the plaintiff to attend an in-person medical examination given the plaintiff’s numerous health concerns. He cited public health recommendations to those with chronic conditions to limit physical contact with others outside of their residence.

    The Court noted that since the trial was scheduled for June 2021, the examination could not be postponed until the pandemic improved. Citing Severin v Barker, 2020 ONSC 7784, the Court stated that a plaintiff who is required to attend an in-person defence medical assessment during the pandemic does not pose undue hardship on the plaintiff where the examination is to be conducted with COVID-19 safety protocols in place. The plaintiff had attended numerous necessary medical and legal appointments in person during the pandemic. The Court further noted that the medical assessment centre had extensive COVID-19 protocols in place including COVID-19 screenings, temperature checks, socially distanced waiting rooms, and the use of PPE. Given the presence of extensive COVID-19 safety protocols at the assessment centre, the Court ordered that the plaintiff must attend the physiatry examination in person.

    Neuropsychological Examination

    The plaintiff submitted that a neuropsychological examination would not be relevant as she did not put her neurocognitive state at issue on the basis that she did not complain of any head injuries, neurocognitive problems, post concussion symptoms, or psychological problems.

    The Court referenced the plaintiff’s statement of claim which stated that the plaintiff suffered serious and permanent impairment of important mental and psychological functions, including but not limited to headaches, dizziness, depression, and memory difficulties. The Court also noted several medical reports from the plaintiff’s doctors which indicated that the plaintiff suffered from psychological problems, pain disorder with psychological factors, and chronic pain as a result of the accident. In assessing the plaintiff’s pleadings, the Court concluded that the plaintiff had put her cognitive state in issue and ordered a neuropsychological examination. Citing Severin and the neuropsychologist’s statement that he could not conduct a virtual neuropsychological assessment, the Court ordered the plaintiff to attend an in-person neuropsychological examination.

    Conclusion

    The Ontario Superior Court’s decision is concerning given the significant health and safety concerns for at-risk individuals during the COVID-19 pandemic. Studies from the Guidelines for Best Practices in Psychological Remote Assessments from the OPA/CAPDA indicate that remote psychometric testing is just as effective as in-person testing. The reports also note that psychological services and assessments can be conducted effectively through online platforms with some modifications or alternatives for fully remote procedures. Plaintiffs should consider alternative assessment models when faced with an insistence that the plaintiff attends an in-person examination during the COVID-19 pandemic.

     If you have a specific question related to your personal injury matter contact Marc G. Spivak, managing partner of the personal injury group at marc.spivak@dsf.theleadshub.biz or 416-446-5855.

    “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

    By Fauzan SiddiquiBlog, COVID-19, Personal Injury

    Fraud Against The Elderly Via Continuing Power Of Attorney For Property

    When people get older and their mental capacity dwindles, it can be a great relief to have someone else look after one’s financial affairs. There often comes a time in our lives when it becomes difficult to keep track of bills and payments and to keep the necessary overview required to make financial decisions. A trusted relative or friend may be willing and able to help when such tasks become more and more cumbersome. A continuing power of attorney for property is an excellent tool that permits the ‘grantor’ to grant a power of attorney (POA in the following) to a person of their choice who will remain in charge of the grantor’s property even in the event the grantor becomes mentally incapable. That is why it is called a continuing power of attorney.

    Scope

    With great power comes great responsibility and on the flip side great risk of abuse. The more encompassing the POA, the more vulnerable the elderly. S. 7(2) of the Substitute Decision Act (SDA) provides that a grantor may authorize the attorney to do anything in respect of property that the grantor, if capable, could do, except make a will. The grantor may also decide to limit the scope of authority to mitigate some of the risks that come with granting a POA. For example, the attorney may only be entitled to deal with certain assets, or the commencement of the power may be postponed to a specific time or event, i.e. when the grantor becomes mentally incapable. Such limitations would need to be clearly written into the POA.

    The POA loses its effect of entitling the attorney to act on the grantor’s behalf in property matters once the grantor dies.

    Legal Requirements

    According to s. 8 of the SDA, the grantor is capable of giving a continuing POA if the grantor

    • knows what kind of property the grantor has and its approximate value;
    • is aware of obligations owed to the grantor’s dependants;
    • knows that the attorney will be able to do on the grantor’s behalf anything in respect of property that the grantor could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney;
    • knows that the attorney must account for the attorney’s dealings with the grantor’s property;
    • knows that the grantor may, if capable, revoke the continuing power of attorney;
    • appreciates that unless the attorney manages the property prudently, its value may decline; and
    • appreciates the possibility that the attorney could misuse the authority given.

    Fraudulent Schemes

    A relative, an alleged friend, or even a stranger may fraud the elderly victim by having them sign a POA by misrepresenting its content or scope to them. Such a POA does not meet the above-mentioned requirements and is void. Yet, third parties may rely on the signed POA nevertheless and conduct business with the fraudster. While such transactions are void and legally the sold asset is recoverable, there might be insurmountable practical hurdles to recovery. The asset may simply have disappeared by the time the fraud is discovered. If the asset is a piece of land, there are certain statutory protections against a title transfer by a fraudster. However, if a good faith purchaser who bought the land from the fraudster resells the land and title is registered for the benefit of the next purchaser, the title of the original owner is extinguished.

    There even remains a risk of abuse after the grantor has died because third parties with whom the attorney conducts business purportedly on behalf of the deceased grantor may not know of the grantor’s death. They may again reasonably rely on the POA presented to them by the attorney. This risk is at this stage of course a risk for the estate of the deceased grantor.

    These extreme examples are criminal matters, as they are in clear violation of s. 331 of the Criminal Code ‘Theft by person holding power of attorney’.

    Another scheme can be conducted with a perfectly valid POA. The attorney may decide not to act solely in the interest of the grantor, as he or she is obliged to do under the SDA. For example, the attorney has the power to make gifts and loans to the grantor’s friends. This is deemed to be in the interest of the grantor by the SDA. A limit imposed on such gifts is the unduly depletion of the grantor’s property to a degree where it does not suffice to satisfy the support and care of the grantor. Obviously, where this line must be drawn is quite debatable and the attorney has significant leeway under the law. A further restriction to the attorney’s power lies in the fact that, if challenged, the attorney must prove that he or she had reason to believe, based on the intentions of the grantor expressed before becoming incapable, that the grantor would have made the gift as well.

    The reality is those elderly people who do not have the mental capacity to look after their own assets are also not in the position to challenge the abuse of a power of attorney. They are helpless and rely on better friends or kinder relatives to look after their interests.

    If you believe you discovered POA fraud performed on a grantor, do not hesitate to reach out to DSF lawyer Tracey Rynard at Tracey.Rynard@dsf.theleadshub.biz or 249-888-6647 for assistance with this litigation matter.

    “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

    By Fauzan SiddiquiBlog, Litigation, Wills and Estates

    Challenging a Termination Clause in Small Claims Court

    A 2019 decision of the Ottawa Small Claims Court serves as a caution for employers and may encourage employees to fight wrongful dismissals. When an employee is terminated without cause, (s)he may be entitled to severance pay in lieu of notice of termination. The amount will depend on the length of time the employee has worked for the employer. If the sum of severance pay in dispute is equal to or less than $35,000, the dispute can be brought in Small Claims Courts. Small Claims Court proceedings are somewhat simpler and can lead to a quicker resolution of the matter. The parties in a Small Claims Court matter have no right to pre-trial examinations for discovery and hence proceed to trial relatively quickly (unless of course there is a raging pandemic).

    A further benefit of Small Claims Court actions is that the parties may represent themselves if they so wish, which will reduce litigation costs. Caution is advised, however, as the law around termination clauses is quite complex and can be confusing.

    Given this complexity, many termination clauses are drafted in a way that renders them unenforceable. That was the case in the above-mentioned decision. If an employer wishes to limit its exposure to wrongful dismissal damages, it is a good idea to consult an employment lawyer and to have the employment contract reviewed. 

    An employment contract may eliminate a common law wrongful dismissal claim if (1) the agreement complies with the minimum standards of the Employment Standards Act (ESA) and (2) is clear and unambiguous and (3) ideally states that the severance pay offered is intended to extinguish all common law remedies.

    The Termination Clause

    In this case, the termination clause read as follows:

    Your employment may be terminated for cause at any time without notice or payment in lieu thereof.  Your employment may be terminated for any other reason by the company upon delivery of one week’s notice per year of Espial service or payment in lieu thereof, or such other amount as is required under the Employment Standards Act, whichever is greater.

    The intention was to limit the employer’s right to claim severance pay under the common law and to grant him or her the entitlements under the ESA.

    This wording failed to have this effect, however. First, the clause did not provide for the continuation of benefits as is required under the ESA. This is a violation of the ESA, which sets out minimum entitlements for employees that cannot be contracted out of. A violation of the ESA renders the contract void.

    The second problem with the termination clause was its ambiguity. The clause could be interpreted to lack reference to severance pay, another entitlement under the ESA. If a termination clause is ambiguous, meaning that the employee upon signing the contract cannot know what his or her entitlement will be upon termination, the clause is void.  

    Thirdly, an argument was advanced by the employee that the contract did not make it clear that the employer intended to oust the employee’s common law entitlements upon termination. The court found that there is no obligation to include a “warning sign” in the termination clause, but that the legal standard is whether the clause is sufficiently clear. Out of an abundance of caution, it may be advisable to explicitly state in the employment contract that the common law remedies are eliminated.

    The claim succeeded and $25,000 was awarded as damages. The plaintiff had been employed slightly less than three years.

    Conclusion

    Given the complexity of the law regarding termination clauses, it is advisable for employers to ask a lawyer to review their employment contracts regularly to ensure their enforceability. The law is evolving and even when a clause was enforceable at some point in time, new case law may have rendered it unenforceable.

    For employees who believe they have been wrongfully dismissed, the Small Claims Court may provide a good forum to obtain relatively quick relief. While they can represent themselves in front of Small Claims Courts, a lawyer’s advice can be indispensable in determining the prospects and the risk involved in the litigation.

     “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
    By Fauzan SiddiquiBlog, Employment Law