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    • Month: June 2021

    Mediation in Employment Matters: Brief Overview

    Mediation is an opportunity for people in legal disputes to discuss their circumstances and try to reach a settlement. This is done in the presence of an independent and impartial, trained mediator. Mediation is an efficient option to reach a resolution of existing and threatened litigation because it is cheaper and quicker than going before a judge. For this reason, it is especially common in employment law matters. In Toronto (as well as Ottawa and Windsor), mediation is a mandatory process for most civil cases.

    The Mediator

    Usually, the parties will try to work with the opposing lawyers to find a mediator on which they mutually agree, and reaching this consensus is typically successful. Toronto has many experienced employment law mediators to choose from. However, if unsuccessful, the court has a “roster” of approved mediators from which one will be chosen and appointed for mediation.

    The Mediation

    The mediator cannot force a settlement or provide legal advice to either of the parties. Nonetheless, the mediation process has proven to be a successful tool in resolving employment law disputes, usually at relatively early stages of the case (when legal costs are low).

    It is important, and at times mandatory, to have all relevant documents exchanged between the parties before prior to the date of mediation. Such documents may include the following: documents detailing the plaintiff’s job search in the case of wrongful dismissal, the termination letter, supporting performance materials (if performance is a matter of dispute), and any other documents relevant to the issues in the case. Your mediator can help you decide which documents needs to be shared.

    Should the case be resolved during the mediation, then the parties must sign a minutes of settlement. Where settlement funds are required by the agreement, payment is usually made within the following 2-3 weeks. In addition, a ‘general release’ will also have to be signed (a document that states release from any and all known and unknown claims). Future wrongdoings are not covered by the general release form. Employee plaintiffs also often request a reference letter as a term of settlement, which if given, becomes a covenant of the agreement. The letter must be in accordance with the minutes and will not allow the common law defence of ‘fair comment’, i.e. the right to make an inaccurate comment about the employee’s performance even if that comment is an honest opinion.

    Confidentiality and Privilege

    The discussions during the mediation must not be repeated to anyone not directly involved in the matter – this is governed by the mediation agreement. A breach of this confidentiality (and thus a breach of the covenant) can lead to a number of additional legal disputes.

    ‘Settlement privilege’ is similar to confidentiality, and is often one of the most important terms to which the parties will agree. All settlement related discussions (if a settlement was reached) must also be kept private. The purpose of this rule is to allow the parties to make open and honest statements and requests to help reach a resolution promptly.

    Formal offers to settle are governed by Rule 49 of the Ontario Rules of Civil Procedure. Additionally, Rule 49 advances a certain benefit to incentivize parties to settle: a party who makes an offer to settle may (if technical procedures are followed) receive a cost award.

    Exceptions

    Settlement privilege, and privilege more generally, is not a guarantee and can be overlooked in exceptional circumstances. As mediation lawyers, we guide our clients through the mediation process and inform which statements and circumstances may be such exceptions. For example, threats, fraud, and misrepresentation – and anything else that may be against public policy – are typically not protected by privilege.

    If you need to book a consultation with a mediator, visit www.dsf.theleadshub.biz/mediation.

    “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

    New Ontario Superior Court Decision holds that COVID-19 related Temporary Layoffs do not Amount to Constructive Dismissal at Common Law – Taylor v Hanley Hospitality Inc., 2021 ONSC 3135

    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 (“IDEL”). 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 was recently extended until September 25, 2021.

    The issue that remained unresolved was whether the Regulation also prevented an employee from advancing a claim for constructive dismissal at common law. As discussed in our previous blog about Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076 (CanLII) (“Coutinho”), the Court determined that the Regulation did not prevent the plaintiff, who had been temporarily laid off during the COVID-19 period and was on deemed IDEL under the ESA 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 the right to temporarily lay off an employee, even if the employer complies with the provisions of the ESA. In accordance with Coutinho, many temporary layoffs due to COVID-19 could be considered unlawful and may entitle employees to damages.

    However, in Taylor v Hanley Hospitality Inc., 2021 ONSC 3135 (“Taylor”), the court came to the opposite conclusion.  In this case, an employee was placed on temporary lay-off in March 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.  The employer relied on Section 7 of the Regulation and argued that the employee was deemed to be on IDEL and that the temporary reduction of her duties and work hours did not constitute a constructive dismissal at common law.

    The Ontario Superior Court of Justice was asked to again consider whether an employee who had been temporarily laid off due to COVID-19 and was on deemed IDEL under the ESA had been constructively dismissed at common law.   

    Constructive Dismissal at Common Law

    In contrast to the decision in Coutinho, the Court in Taylor determined that there was no constructive dismissal at common law.  The Court held that it was clear that the Regulation was enacted to displace the common law with respect to constructive dismissal and layoffs, since all temporary layoffs relating to COVID-19 are deemed to be IDELs, retroactive to March 1, 2020 until the end of the COVID-19 period.  As such, employees who were placed on IDEL were not constructively dismissed at common law.

    The Court disagreed with the analysis in Coutinho, stating that Coutinho failed to properly apply the principles of statutory interpretation. In particular, Coutinho had improperly interpreted Section 8(1) of the ESA to mean that the ESA may not displace the common law. The Court referred to the Court of Appeal’s reasoning in Elsegood v. Cambridge Spring Service (2001) Ltd., 2011 ONCA 831 (CanLII), in which the court expressly concluded that “Simply put, statutes enacted by the legislature displace the common law” and that it is incorrect to presume that the common law continues to operate independently of the ESA.

    Conclusion

    The decision in Taylor is in direct conflict with Coutinho and creates uncertainty as to whether employers would be liable at common law for constructive dismissal in relation to COVID-19. While Taylor provides relief for employers that have relied upon IDEL, the decision leaves the state of the law ambiguous for constructive dismissal claims at common law.  It is very likely both of these decisions will be appealed and that the Court of Appeal for Ontario (the highest court in Ontario) will ultimately be asked to resolve this inconsistency in the law. 

    “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, Employment Law

    What if separating parents disagree over vaccinating their children?

    Children in Ontario between the ages of 12 – 17 became eligible for the first dose of the Pfizer vaccine on May 23, 2021. This raises a new question for separating parents: what happens when one parent wants their child vaccinated against COVID-19, but the other refuses?

    The legal test for family law matters involving parenting issues remains the best interests of the child. Decisions involving children are always considered on a case-by-case basis, while considering the prevailing social or medical evidence available at the time. For example, court decisions involving virtual vs. in-person schooling during the pandemic such as Chase v Chase 2020 ONSC 5083 and Zinati v Spence 2020 ONSC 5231 largely deferred to public health guidelines in deciding whether children should be enrolled in virtual school. The short answer is this: where the government endorses in-person schooling, the court is likely to accept this conclusion unless one parent is able to advance evidence showing why it would be contrary to that specific child’s best interests.

    Court decisions dealing with children’s pre-pandemic vaccines have adopted similar reasoning. For example, in the earlier case of C.M.G. v. D.W.S. 2015 ONSC 2201, the father sought to have the child vaccinated before travelling overseas, while the mother refused. The court ultimately concluded that vaccinating the child would be in her best interests and relied on Canada’s public policy in favour of vaccinations of children generally, in addition to the expert evidence presented by the father in favour of the child’s vaccination.

    In Tarkowski v Lemieux, 2020 ONCJ 280, (decided before COVID-19 vaccines were approved for children), the court provided the father with the sole authority to vaccinate the child against COVID-19 should a vaccine be approved in the future. The court reached this conclusion, in part, due to the mother’s lack of trust in Western medicine generally, and her history of refusing or delaying the child’s routine vaccinations to date. The court further acknowledged that children and young people in general do not appear to have a high risk of developing adverse reactions to the COVID-19 vaccine, and that vaccinations could be beneficial in preventing the spread of the virus to more vulnerable members of the population.

    The court’s reasoning was similar to how pre-pandemic vaccines and the issue of virtual vs. in-person schooling were treated. In short, the courts are likely to defer to the accepted public health guidelines on the issue, unless one parent is able to advance evidence showing that the vaccine would not be in their child’s best interests. This would likely need to be accomplished by way of a credible expert’s opinion with respect to the specific child’s needs. A parent might succeed in making this kind of argument where, for example, the child has a history of adverse reactions to previous vaccines.

    If you have any questions related to your family law matter contact Mason Morningstar at mason.morningstar@dsf.theleadshub.biz or 416-446-3336.

    “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, Family Law

    Ontario COVID-19 – Can Your Company Work This Construction Season?

    The extension to the provincial stay-at-home order has caused even greater confusion among all industries, but most specifically, the construction sector which is now subject to additional guidelines.

    On April 16th, the government announced enhanced regulations for the construction sector, adding to and revising how the construction community is to operate at this time. This restriction is in effect until Step 1 of the re-opening plan begins on June 13th.

    The government’s original requirements, which include physical distancing, good ventilation, and disinfection of surfaces/machines/tools, remain in place.  With respect to the recent government regulations, the important change to now note is what construction is considered essential? This post provides an update on what activities and projects are considered essential and an update on the guidelines that were announced.

    As set out in the amended Ontario Regulation 82/20, permitted construction projects and related activities (including land surveying and demolition services) are those that:

     (a)  are associated with the health care sector or long-term care, including new facilities, expansions, renovations, and conversion of spaces that could be repurposed for health care space;

    (b)  ensure safe and reliable operations of, or provide new capacity in,

    (i)  municipal infrastructure, or (ii)  provincial infrastructure, including but not limited to, the transit, transportation, resource, energy and justice sectors;

    (c)  support the operations of, or provide new capacity in, electricity generation, transmission, distribution and storage, natural gas distribution, transmission and storage or in the supply of resources;

    (d)  support the operations of, or provide new capacity in, schools, colleges, universities, or child care centers within the meaning of the Child Care and Early Years Act, 2014;

    (e)  are required for,

    (i)  the maintenance and operations of petrochemical plants and refineries, (ii) significant industrial petrochemical projects where preliminary work commenced before April 17, 2021, or (iii)  industrial construction and modifications to existing industrial structures limited solely to work necessary for the production, maintenance or enhancement of personal protective equipment, medical devices such as ventilators and other identified products directly related to combatting the COVID-19 pandemic;

    (f)  would provide additional capacity in the production, processing, manufacturing or distribution of food, beverages or agricultural products;

    (g)  were commenced before April 17, 2021, and that would, (i)  provide additional capacity for businesses that provide logistical support, distribution services, warehousing, storage or shipping, and delivery services,(ii)  provide additional capacity in the operation and delivery of Information Technology (IT) services or telecommunications services, or (iii)  provide additional capacity to, or enhance the efficiency or operations of, businesses that extract, manufacture, process and distribute goods, products, equipment, and materials;

    (h)  support the operations of broadband internet and cellular technologies and services;

    (i)  are residential construction activities or projects and related services;

    (j)  prepare a site for an institutional, commercial, industrial or residential development, including any necessary excavation, grading, roads or utilities infrastructure;

    (k)  are necessary to temporarily close construction sites that have paused, or that are not active, to ensure ongoing public safety;

    (l)  are funded in whole or in part by, (i)  the Crown in right of Canada or in right of Ontario, (ii)  an agency of the Crown in right of Canada or in right of Ontario, or (iii)  a municipality;

      (m)  are, (i)  intended to provide shelter or supports for vulnerable persons or affordable housing, and (ii)  being funded in whole or in part by, or are being undertaken by, (A)  the Crown in right of Canada or in right of Ontario, (B)  an agency of the Crown in right of Canada or in right of Ontario, (C)  a municipality, (D)  a service manager as defined the Housing Services Act, 2011, (E)  a registered charity within the meaning of the Income Tax Act (Canada), or (F)  a not-for-profit corporation; or (n)  support the operations of or provide new capacity for, veterinary facilities within the meaning of the Veterinarians Act.

    It is clear from the aforementioned list of permitted activities in the regulation that the majority of them are focused on the health care, telecommunications, and personal protection equipment sectors. In addition to that, some other essential construction activities include the maintenance and construction of roads and infrastructure, public safety, and affordable housing services.

    If you have any questions about whether your construction company is able to work during Ontario’s battle against COVID-19, please contact Devry Smith Frank LLP Lawyer Adam Grossi at adam.grossi@dsf.theleadshub.biz or 416 446 5094 for any assistance with this 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, Construction Law