Four things you need to know about changing laws in Ontario

BY NANA ADJEI-POKU

On May 20^th, 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 25^th, 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.