Legal Matters
Four things you need to know about changing laws in Ontario
BY NANA ADJEI-POKU
On May 20th, I attended an online webinar hosted by the Black Chamber of Commerce. This webinar featured lawyers from Nava Wilson LLP, a law firm in Scarborough, ON that specializes in Real Estate, Corporate Law and Litigation. Key issues that were put to the panel involved: workers’ rights and employment standards, landlord and tenant matters for both commercial and residential tenancies and real estate matters.
A member of the panel mentioned that the coronavirus was like a “Tsunami that hit us.” First there was the impact and then after that comes the cleanup. Right now, we are still dealing with the impact phase and have entered the preliminary stages of the cleanup with the government’s allowance of certain businesses to reopen, but with strict safety measures. As we all know, this pandemic has affected life, liberty and economic issues all around.
Residential and commercial
One of the biggest issues at the forefront is landlord and tenant (residential and commercial) matters. The panel spoke on the fact that you have employers in Ontario who pay rent, have been forced to close and can no longer pay that rent. There are perspectives from each side whether you are a landlord or a tenant.
The options that were recommended were that:
- Landlords and commercial tenants should make all attempts to engage in open conversation
- The tenants should be up front about that fact that they are or will have issues with rent
- Discuss the fact that their revenue has been greatly affected
- Revisit the fact that they’ve had to lay off employees
- Ask the landlord how they can assist
It doesn’t hurt to engage in fruitful discussions with your landlord or tenant, as it is evident that this is happening worldwide. Some landlords shave allowed deferrals or abatements, and although they are not required to assist a commercial tenant, there are some who will be taking advantage of the new federal rent relief program launching on May 25th, 2020. This program will allow landlords to receive a loan that is forgivable to cover half monthly rent for April, May and June. The only requirement is that the landlords drop the rent by at least 75% over the same period.
If you are in a residential tenancy, evictions are still stayed but that does not prevent your landlord from issuing notices. Notices are different from eviction orders. Now, in regard to when you are selling your home and you have tenants residing there who do not wish to vacate. You cannot evict your tenant or threaten them with damages for choosing not to vacate before your closing date because they are allowed to remain in the home by law until the tenancy is terminated by way of an Order.
The mistake a lot of sellers are making in their agreements of purchase and sale is the inclusion of the clause that the property will be “vacant upon closing”. You cannot promise this if you have a tenant who has not lawfully been evicted. As a seller, you are opening yourself up to huge liability and costs should you breach the sale agreement. It is recommended that you insert a clause that extends the date to allow you to effectively deal with your tenant issue in the proper forum. Even if a landlord or their lawyer threatens you, you cannot be evicted without an Order.
Rights of employees and employers
The next issue that is of growing importance is the rights of employees and employers.
Now that Phase 1 of the reopening by the Province has commenced, there is talk of employees who have concerns about returning to work. Employees are not comfortable and feel that it is still unsafe.
If you work at a company where it is not possible to maintain the required 2m distances, your employer is required to provide you with personal protective equipment (PPE) to ensure you are safe while you work. What is considered as safe will vary depending on the type of job. If you are working from home and fulfilling your regular tasks, as you would while in the office, you are entitled to the same rate of pay that you would have earned while physically in the office, unless your contract states otherwise.
The important document in an employer-employee relationship is the employment contract. This speaks to the terms that would guide both parties’ in situations like this. Some firms never previously allowed their employees to work from home, so their agreements never contained such clauses. Hopefully employers who previously did not, will now include clauses in their agreements that will formalize working from home arrangements.
Terminations without cause
This is what has been taking place. When you are terminated without cause, you are entitled to notice pay. The Employment Standards Act outlines the minimum amount. You are entitled to one week for every year of service to a maximum of eight weeks. Mind you, reasonable notice pay is higher and there are factors that are taken into consideration to determine what you are actually entitled to. These factors are:
- Character of employment (e.g. physical labour, managerial work),
- Employee’s years of service
- Age of the employee
- Availability of similar employment and the experience
- Training and qualifications of the employee
You should seek assistance from a lawyer or paralegal who can guide you, as every employer-employee relationship is unique.
Wills and Powers of Attorney
One area of law that was amended is in regard to wills and powers of attorney. Pre-COVID, all wills and powers of attorney had to be witnessed in person before a lawyer. Due to COVID, an emergency motion was filed, and the Province passed legislation in early April allowing wills and powers of attorney to be witnessed virtually. Although some say it’s not a perfect solution, it safeguards against having to be in the physical presence of a person and risking yourself. Who knows if this will remain after everything gets back to normal.
In conclusion, the law and the way in which we practice law has changed and is still changing to adapt to what I will call, our new norm.
BY NANA ADJEI-POKU
Munira Omar, a Canadian Citizen with no criminal record obtained employment at WestJet Airlines in Toronto as a guest services ambassador. She was then promoted to customer service agent eight months thereafter. As many of us know, to perform certain duties while employed by an airline, one needs to have security clearance to access restricted areas of the airport. Ms Omar applied for this card on September 29th , 2015 (a month after she was hired) and was granted a temporary pass.
Two years after being granted the pass, Ms Omar was notified by Transport Canada about its concerns about some information obtained regarding her ability to obtain a full security clearance. Apparently, there was an RCMP check that revealed that Ms. Omar was associated with two individuals with extensive criminal record histories. Some of the charges noted were: trafficking, possession of a Schedule 1 substance, possession of a prohibited weapon, assault, and obstructing peace officers. Transport Canada mentioned a search warrant that was executed at Ms. Omar’s house back in 2013 where there were documents in the name of one individual who was known to reside with her, and another who was incarcerated at the time the search was executed. Both individuals were later found to be her brothers.
Ms. Omar was invited to respond, and advised in her response that one of the individuals was her brother who had not lived with her since 2008. She also raised the issue that she was not happy that she was being penalized for her brother’s actions. She argued that her right to procedural fairness was breached by Transport Canada.
In April 2018, her employment was terminated so she filed submissions to the Advisory Board. This was then sent to the Minister’s Delegate for review. On April 30th, 2019, the Minister’s Delegate also refused her request for review and upheld the decision to refuse the security clearance application. The reasons outlined were that her association with two immediate family members who were involved in serious criminal activities raised concerns regarding her “trustworthiness and reliability” and the potential that she could be “Influenced by her immediate family.”
It was decided, on a balance of probabilities, that Ms Omar was prone or could be induced to: commit and act, or assist or abet any person to commit an act that would have lawfully interfered with civil aviation. It was also noted that Ms Omar failed to address the concerns presented to her adequately, and this could lead to her being influenced by her brothers to commit unlawful acts. Transport Canada also said that she did very little to alleviate their concerns that she would not be prone to any influence from her brothers.
This is an eye-opener for many out there that your blood relation to an individual can have the same impact on you even if you are a law-abiding citizen with no criminal record.
BY NANA ANJEI-POKU
In continued efforts to provide information to the public regarding the Courts of Ontario, the following are the most recent updates.
Limitation Periods
Limitation Periods under the Re-opening Ontario (A Flexible Response to COVID-19) Act, 2020 will end, and suspended time periods will resume running as of September 14th, 2020. For example, if you had a deadline to file a claim in Small Claims Court on April 16th, 2020, which is thirty days after the original limitation suspension date back on March 16th, 2020, you will have to now file it by October 14th, 2020, which is thirty days from the date the limitation period was lifted. This will apply to all deadlines attributable to all courts and tribunals in Ontario.
Provincial Offences Court
Limitation periods under the Provincial Offences Act will be lifted on September 11th, 2020. Beginning September 28th, 2020, Provincial Offences Act will be expanded to include non-trial matters remotely. These matters will include guilty pleas, withdrawals, judgment delivery, first appearances and adjournments. No in-person Provincial Offences Act proceedings will be conducted until at least Monday, October 19th, 2020. As previously mentioned, all matters scheduled between March 16th, and October 16th, are still being adjourned and rescheduled. Information concerning POA appeals will be updated at a later date.
Small Claims Court Proceedings
Small Claims Court matters continue in the same manner as the previous update with motions, and urgent garnishment hearings being heard via telephone or videoconference. Settlement conferences continue to be held remotely with the consent of both parties.
Criminal Court Proceedings
Starting September 8th, 2020, virtual criminal case management courts will be starting in: Barrie, Brantford, Brockville, Chatham, Cornwall, Lindsay, London, Milton, Niagara (St. Catharines/Welland/Fort Erie), North Bay, Parry Sound, Perth, Peterborough, Sarnia, Sault Ste Marie, Sudbury, Toronto North (1000 Finch) and Toronto West (2201 Finch). If you have any criminal matters, please contact the courthouse directly for information specific to your matter.
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