Kane Shannon Weiler LLP is here to support you during these uncertain and challenging times. Our Employment & Labour Group and our Tax Group hosted a Let’s Talk webinar answering all of your questions surrounding COVID-19 and your workplace. We want to help you, your business and your employees by sharing our knowledge and information.

Chris Drinovz, Mike Weiler and Kevin Scott had a candid discussion on topics covered in your questions, including the new Canada Emergency Wage Subsidy legislation (CEWS), layoffs, reducing hours, work-sharing, EI sub plan, work refusals, Canada Emergency Response Benefit, and more.

We posted most of the questions that were covered below accompanied by their answers for your information. For a copy of the full webinar recording, please email  Chris Drinovz at [email protected].

**Please be advised that this Q&A is only applicable to the first four reporting periods of the CEWS (March 15 to July 4). For reporting periods after July 5, 2020, please stay tuned as the federal government is in the process of introducing amendments to the CEWS program that would result in new formulas for calculating the subsidy amounts. We expect to have further updates as more information becomes available.***  

Here are some highlights from our webinar:

Intro and Overview of Support Programs Available

https://youtu.be/kkZouQtg7io

Overview of CEWS Program by Kevin Scott, Partner, Tax Group

https://youtu.be/ojMrSa69EvE

Do owner/managers, non-arms length employees qualify for the Canada Emergency Wage Subsidy (75% - CEWS)?

https://youtu.be/nNBTGIMNubw

Do you need to provide a notice letter for reducing hours or layoffs? Had to lay off some staff, do we still qualify for Canada Emergency Wage Subsidy (75% - CEWS)? Do we need to bring back all employees to qualify?

[embed]https://youtu.be/xHN-Z9F6NMY

How does the Canada Emergency Wage Subsidy work for sales people with some income based on commission?

https://youtu.be/gFfbtfWtjD4

Can an employer lay off an employee who has just transitioned from EI to long term disability?

https://youtu.be/SPGd6wNPKAA

Are layoffs appropriate for employees who are at high risk due to pre-existing health conditions and COVID-19?

https://youtu.be/BcpEidsflzQ

Is the 10% subsidy program the same as the 75%? What are the requirements to qualify for 10% program? Do you still need to suffer same loss?

]https://youtu.be/LlFCr95WwlE

Do you have to pay back Canada Emergency Wage Subsidy? How do you show proof of revenue decline to meet the minimum standard? Will this be subject to a CRA audit at the year end?

[embed]https://youtu.be/W5xZ10Tx0eQ

What does an employees obligation to mitigate financial loss look like during a pandemic? (for example, agreeing to workshare, agreeing to temporary layoff, reduced hours etc.) How will the reasonable notice period be affected for wrongfully dismissed employees?

https://youtu.be/7dOY36y-5kE

How does the CEWS, CERB or EI benefits affect someone moving into or coming out of maternity leave? Are they eligible for EI or CERB?

https://youtu.be/tD4skcPisF8

Does the CEWS and CERB apply to employees and corporations including employees who own the voting shares?

https://youtu.be/9HfQ1egqrPY

Does vacation pay get included in eligible renumeration/wages when checking for CEWS eligibility?

https://youtu.be/hWCSjUQ5bE8

Can the CEWS (75% wage subsidy program) still be used if we get paid director/management fees instead of as employees?

https://youtu.be/JGgQ_rZLspU

What's the best process for employees who refuse to work because they feel unsafe due to COVID-19?  We have some employees we need to bring back as work is picking up but they prefer to stay on CERB and don't want to return to work.

https://youtu.be/YyYrfPjyQoE

Here are some of the additional questions that came in during and after the webinar, and our answers for your reference:

There was something about the EI by the employer that would be not payable. Is it a deferred payment or grant sort of thing? And how do I access this info?

I believe you are referring to my comment that in certain cases, an eligible employer for the CEWS can receive a refund for EI and CPP premiums paid on eligible remuneration claimed for eligible employees during the qualifying period. The legislation provides that if you qualify for CEWS, put employees back on payroll and claim the subsidy on wages paid to them but they are not actually working i.e. on leave with pay, you will receive not only the 75% subsidy on the wages you pay but also a refund on the CPP and EI premiums you remit on those wages.

If we cannot get the subsidy for some day labourers because of their %22employment status%22 with our company, can we change them to put them on payroll, and would that qualify now? And furthermore, would it be cost effective with all the tax payments and EI etc that the employer has to pay on an employee's behalf?

This is a particular situation in which you should discuss details with a lawyer and seek legal advice. If the remuneration paid to the day labourers was not paid as employment income during the qualifying period(s) (i.e. they were paid as independent contractors), then you would not be entitled to claim the CEWS for those payments. It is possible that if you put them on payroll now, you could claim the CEWS on wages paid going forward HOWEVER there are some risks there, both within the CEWS legislation and generally, as you would be assuming all of the liabilities of an employer by treating them as employees (additional taxes, employment standards, severance pay).

You mentioned you could take advantage of the 10% subsidy by not sending in money. Could you elaborate on that please?

Yes, the 10% subsidy is gained simply by calculating the 10% amount you are entitled to and then withholding that amount from your next employee income tax remittance. You are entitled to a subsidy of 10% of your payroll for the period March 18 to June 19, 2020 – up to a maximum of $1,325 per employee and $25,000 per eligible employer. In order to be eligible you must have taxable capital of less than $15M in the preceding tax year. You don’t have to officially apply, you just do the calculation and withhold the amounts. Note that you only withhold the income tax amounts, you must still remit CPP and EI. The 10% subsidy is taxable income and can still be claimed after June, 2020.  You can find further details on how to calculate and report the subsidy here:

https://www.canada.ca/en/revenue-agency/campaigns/covid-19-update/frequently-asked-questions-wage-subsidy-small-businesses.html

For the 10% wage subsidy is the criteria the same for employees arm’s length/non arm’s length?

Yes, for the 10% temporary wage subsidy, it makes no difference if the employee is arm’s length or not. You can find further details on how to calculate and report the 10% TWS here:

https://www.canada.ca/en/revenue-agency/campaigns/covid-19-update/frequently-asked-questions-wage-subsidy-small-businesses.html

I missed the answer to whether vacation pay or sick pay qualifies as wages for CEWS

Yes, taxable remuneration paid to an eligible employee as vacation pay would qualify as eligible remuneration for the purposes of the CEWS. For sick pay, assuming that we are talking about taxable wages paid to the employee pursuant to sick leave entitlement (instead of money paid by short or long term disability insurance), then these payments would qualify as eligible remuneration as well.

Will CWS apply to new employees hired after the crisis began?

Yes. If you qualify as an eligible employer, you can claim the CEWS on wages paid to new employees hired after March 15, 2020, so long as they are arm’s length employees (i.e. not a family member, etc). You are eligible to receive 75% of the eligible remuneration actually paid to the new employees during the qualifying periods, up to a maximum of $847/week, per employee.

Can you wait until the end of the year to claim the wage subsidy?

For the 10% Temporary Wage Subsidy, the answer is “yes”. If you are an eligible employer, but choose not to reduce your payroll remittances during the year, you can still calculate the 10% Temporary Wage Subsidy on remuneration paid from March 18, 2020 to June 19, 2020. At the end of the year, the CRA will pay the amount to you or transfer it to your next year’s remittance. You can find further details on how to calculate and report the 10% TWS here:

https://www.canada.ca/en/revenue-agency/campaigns/covid-19-update/frequently-asked-questions-wage-subsidy-small-businesses.html

For the 75% CEWS, eligible employers must apply for the subsidy before October 2020.  

employers may be eligible for a subsidy of up to 100% of the first 75% of pre-crisis wages or salaries of existing employees. What does this  mean?

I think you are quoting from the government website, which states: “In effect, employers may be eligible for a subsidy of up to 100% of the first 75% of pre-crisis wages or salaries of existing employees.”

This simply means that the maximum amount of the subsidy for eligible employers will be 75% of the pre-crisis wages paid to eligible employees. If you have continued to pay employees 100% of pre-crisis wages, then only the “first” 75% is subsidized and the remaining 25% continues to be paid by the employer. Note also that the subsidy is only available on the first $57,825 paid to the employee, which results in a maximum possible amount of $847 per employee per week. Any amounts paid to the employee above the $57,825 threshold are not subsidized.

What is the consequence if you are not able to pay the 25% corporately?

The government’s original language around the employer having to pay the “25% difference” has caused some confusion. In our view, since the 75% subsidy for eligible employers is based on amounts actually paid to the eligible employee, if the employee receives the subsidy based on 75% of amounts paid, then they will have already paid 100% or at least 25% more than the subsidy amount.

There are some exceptions to this. For example, if the employer has reduced the employee’s salary by more than 25% during the qualifying period, then the subsidy amount is actually the entire amount paid to that employee. For example, if Sally made $40,000 per year before March 15 and has been reduced by 50% to $20,000 per year, then the employer can claim 100% of the wages paid to Sally under the CEWS.

All of that said, the more recent language from the government is that employers receiving the subsidy must make best efforts to pay employees their pre-COVID-19 wages. Therefore, if you are claiming the subsidy based on a wage that is less than the employee’s pre-crisis wage, you must make best efforts to top-up the employee to their pre-crisis wage. While this does not appear to be a legal requirement, the legislation requires the person who has principal responsibility for the financial activities of the eligible entity to certify the completeness and correctness of the application submitted. It is possible that the application will require that person to provide details of the best efforts made to top-up employees to pre-crisis wages.

What documentation is needed for CEWS?

The CEWS application form is not yet available so we can’t say for certain. However, we don’t believe that you will need to submit any documents with the online application itself. However, you should retain all of the documentation used to calculate the qualifying revenues and revenue deduction, along with all documentation showing eligible remuneration paid to the employee for which you are claiming the subsidy. If you are not able to top-up employees to pre-crisis wages, you should retain all documentation that would justify this decision, as the application may require an attestation that you have made best efforts to do so.

When can we start applying for CEWS?

We expect the application will be available via the CRA My Business Account portal in the next several weeks. I would check back for regular updates on this. April 21, 2020 Update: it has been announced that applications can be submitted starting on Monday, April 27, 2020 and will be processed by May 5, 2020.

Can you claim both the TWS and the CEWS?

Yes. You can claim the 10% temporary wage subsidy and then apply for the 75% CEWS, however any amounts claimed under the 10% will be deducted from the 75% refund received under CEWS for the same period.  Note the subsidy is gained simply by withholding income tax in the amount you qualify for whereas the CEWS is an actual payment from the CRA to your account. As the CEWS money is at least several weeks away, we recommend taking advantage of the 10% TWS now. You can find further details on how to calculate and report the 10% TWS here:

https://www.canada.ca/en/revenue-agency/campaigns/covid-19-update/frequently-asked-questions-wage-subsidy-small-businesses.html

Is the weekly $847 based on gross or net salary?

The CEWS formula looks at gross eligible remuneration paid to the employee during the qualifying period when calculating the amount of the subsidy an eligible entity will qualify for. You are entitled to 75% of the first $57,825 (gross) paid to the employee, which results in a maximum possible amount of $847 per employee per week. You can find a summary of additional government benefits available for businesses here:  https://innovation.ised-isde.canada.ca/s/list-liste?language=en&token=a0B0b00000OGBoqEAH

Is there coverage for job sharing for on the days employees are not working?

If referring to Employment Insurance Work-Sharing program, the CEWS legislation says that if you claim for wages paid to an employee on Work-Sharing, the subsidy will be reduced by the total amount of EI benefits received by that employee during the qualifying period.

Is there coverage for loss of wages/income if employees are down to part time? ex. down from 5 to 3 or 2 days a week, Loss of mileage etc.

The short answer is “yes”. For eligible employers, the CEWS is available on wages paid even if the employees have been reduced to part-time. Note that if the wages claimed for represent a deduction of 25% or more of the employee’s pre-crisis wage, then the amount of the subsidy will be 100% of the wages paid to the employee during each qualifying period. In cases of reduced hours, the employer must be mindful of the risk of constructive dismissal claims. You should therefore consider whether you can use the CEWS to bring those employees back to full-time or as close to full time as possible; as you will recall, the employee is not required to be working in order for you to receive the subsidy on wages paid to them. Perhaps we can have a discussion about this, feel free to give me a call this week if you want to review options.

If we have temporary laid off our employees and they have received their CERB payment from March 15 - April 11th are we able to rehire them within this period or do we need to rehire them effective April 13th? Would this affect their CERB payment they received and make them pay this money back to the government?

If in fact you have rehired employees on or prior to April 11th 2020 and paid them in order to collect the CEWS then under the current CEWS rules the employees (not the employer) must repay their total $2000 CERB regardless of what they were paid in that first qualifying  period (i.e. March 15th to April 11th).  If they were rehired and paid after April 11th 2020 they can keep the 1st $2000 paid for the March 15th to April 11th qualifying period but would be ineligible to collect the $2000 for the second qualifying period  i.e. April 12th to May 9th assuming they are  back on payroll.

 As noted this is under the current CERB rules.  However we understand that the CERB will be amended to allow applicants to earn up to $1000 in each period and still collect the $2000 CERB.  If that occurs then we believe that employees earning less than $1000 each qualifying period could get the CERB and the employer could then apply for the CEWS payment of the less than $1000 wages.

Are we required to pay the payroll taxes for the 75% that the government is covering?  Does the government only give you back 75% of what you have paid - in other words, what we pay to the employee is 100% and the government only gives us back 75% of the money we have paid out?

If you are paying the employee’s salary then you must make employer remittances for premiums and contributions for EI and CPP.  The 75% CEWS would only be for the wages.  However if you have put employees back on payroll who were laid off (i.e. furloughed) and are paying them salary while not requiring them to work, then the amount of the CEWS will be increased by the total of all amounts payable by you as employer premiums and contributions.

If we have crew members taking this time due to compromised immune systems ether themselves or a family member and are on EI are we supposed to be paying them any wage?

The simple answer is no.  If you wanted to pay them more and top up their EI you might be eligible for the EI SUB plan that allows employers in certain circumstances to top up EI without penalty to the employee.  If you are interested in that SUB program please contact Chris [email protected] as he has familiarity with that program.

If for some reason you wanted to put them on payroll and pay them but not have them come back to work you can do that as we discussed yesterday.  In some cases you would get 75% back on what you pay them as a CEWS subsidy or in some cases you might get 100% back on what they are paid to maximum $847.  As we mentioned in all cases of bringing back furloughed employees you need to discuss with them the options.

Finally please note that this employee would likely have the job security protection of the COVID 19 related leave provisions recently added to the BC Employment Standards Act.

The 40K loan was mentioned by the govt, but no mention on how to apply. The banks do not have answers yet either...

The requirements for the $40k loan are much easier to meet then the 75% wage subsidy.  There is no requirement to show any revenue loss.  All you need to show is:

1. That the company had active 2019 payroll between $20,000 and $1.5M in salaries, as declared on its T4 summary; and
2. Someone with the company must attest that the loan proceeds will be used for certain eligible expenses (including payroll, rent utilities, etc.)

Clarification on whether CEWS can be claimed on management fees where those fees paid under separate GST number than directors fees.

Currently, the computation for the wage subsidy only includes “eligible remuneration” paid to an “eligible employee”.   It does not include individuals receiving dividends or contractors receiving management fees, subject to GST.

In regards to the 40k loan, if the company account has a healthy balance account is the company still eligible for the loan?

The requirements for the $40k loan are much easier to meet then the wage subsidy.  There is no requirement to show any revenue loss.

I don’t think that CEWS provides support for non-revenue generating businesses (e.g. privately funded research and development companies) whose staffing levels have been temporarily reduced due to COVID.  What options exist, if any, for companies in this situation?

The CEWS does provide support for certain tax exempt entities.   Eligible revenue for these entities includes membership fees and other amounts received in the course of its ordinary activities.  Such entities may elect to exclude or include government funding sources in the determination of its qualifying income.

Specifically, the definition of “eligible entity” in Bill C-14 includes tax exempt entities under paragraphs 149(1)(e), (j), (k), and (l) of the Income Tax Act (Canada).  Paragraph (j) refers to non-profit corporations that were constituted exclusively for the purpose of carrying on or promoting scientific research and experimental development.

Similar question for the $40,000 relief loan, if the only people on payroll are the owner-managers and immediate family does this qualify for the loan?  If so are there any additional rules to follow?

This benefit has the same test for arm’s length and non-arm’s length employees.

The requirements for the $40k loan are much easier to meet then the 75% wage subsidy.  There is no requirement to show any revenue loss.  All you need to show is:

1. that the company had active 2019 payroll between $20,000 and $1.5M in salaries, as declared on its T4 summary; and
2. someone with the company must attest that the loan proceeds will be used for certain eligible expenses (including payroll, rent utilities, etc.)

CEWS - What's New and Employment Law Considerations - KSW Article - Download PDF

On March 27th 2020 the Prime Minister announced a wage subsidy of 75% for qualifying businesses.  This program is the most important and fundamental initiative in the Federal Government’s COVID 19 strategy.  The purpose of the program was to have employers avoid layoffs where possible, or return employees to payroll and begin paying them directly and to allow employers to get ready to be able to start up business again after the COVID 19 pandemic subsides and businesses (hopefully)  start a return to normal.  The CEWS will ensure that a meaningful connection between employers and employees would remain as we work through this crisis.

Since the Prime Minister’s announcement the government and its ministers have been tweaking the program.  Finally on Saturday April 11th 2020, with the consent and cooperation of the Opposition, the Government passed into law Bill C-14 A second Act respecting certain measures in response to COVID 19 (“Bill C-14”).  Bill C-14 received Royal Assent that same day.

The KSW Employment and Labour Group has been reporting on various employee plans such as EI, the $2000 CERB, amendments to the Employment Standards Act to provide job security in certain circumstances, related employment issues and most particularly the development of the CEWS as the CEWS relates primarily to wages and employees. Read our previous articles here: https://www.ksw.bc.ca/employment-labour-blog/

Nevertheless the final version of Bill C-14 involves substantial amendments to the Income Tax Act as well as the Financial Administration Act and the Canada Deposit Insurance Corporation Act.   Further the actual application form has not been finalized and that will be important to consider whether your business qualifies. As a result before a business decides to start putting employees on payroll, paying wages and then applying for CEWS, it will be wise to consult its accounting and tax professional advisors to ensure they and their employees are eligible and that they properly file for the subsidy.

There will also be a number of employment issues including practical issues such as whether the CEWS should be accessed in the first place and how are employees to be put back on payroll.  Our Group can help you develop your strategies for your particular business.

In this article we will identify the 10 key changes and critical aspects of Bill C-14 and then offer some answers to the most common questions we have heard from you.

**Please be advised that this Q&A is only applicable to the first four reporting periods of the CEWS (March 15 to July 4). For reporting periods after July 5, 2020, please stay tuned as the federal government is in the process of introducing amendments to the CEWS program that would result in new formulas for calculating the subsidy amounts. We expect to have further updates as more information becomes available.***  

TOP 10 CHANGES TO THE CEWS FOUND IN BILL C-14
Given the nature of Bill C-14 and the myriad of questions that can arise it is not possible in this article to outline all the details of the legislation or the questions that potentially arise in your specific business.  Further each case will be decided on its own facts.  However we have identified what we see as the top 10 key changes found in Bill C-14 since the program was originally announced on April 1.  This list is not exhaustive and we invite you to send us your specific questions which we will try to answer on an individual bases.

1. To qualify for the CEWS for March 2020, revenues must have decreased by 15% (instead of the previous 30%). This change was made to reflect the fact that many businesses did not start suffering losses until the middle of March. The required revenue decline for April and May continues to be 30%. It is important to note that nothing the legislation requires the revenue reduction be caused by COVID-19.

2. Employers may choose to calculate their decline in revenue for March, April and May 2020 against either an average of revenues for January and February 2020, or revenues from March, April and May 2019. Whatever option is used must be used as the benchmark for all qualifying periods. Where an employer did not carry on activities for all of January and February 2020, the revenues for the period that the employer did carry on activities will be averaged and applied to both months. The January/February 2020 reference is the only option for any employer not carrying on business on March 1, 2019. Note that the above-noted calendar month periods for qualifying revenue do not coincide with the four-week periods for which the subsidy can be claimed.

3. For calculating revenue decline, employers may calculate their revenues under the accrual method or the cash method (as per existing tax rules) but not a combination of both. Whichever method is chosen must be used for all relevant qualifying periods. Qualifying revenue means the inflow of cash, receivables or other consideration arising from the ordinary activities of the entity in Canada. This includes revenue from the sale of goods, the rendering of services and the use of resources by others. The definition excludes extraordinary items and amounts derived from non-arm’s length sources, subject to certain exceptions. We expect there are a number of interpretive issues around the definition of qualifying revenue, which must be explored with your tax and accounting professionals.

4. An eligible employer that qualifies for the CEWS for one qualifying period will automatically be deemed to qualify for the next qualifying period. For example, if you qualify for the first period, March 15 to April 11, you will automatically qualify for the next period: April 12 to May 9; however you will still have to re-qualify for the third period: May 10 to June 6. If you do not qualify for the March period but qualify for April, then you will automatically qualify for May. This change eliminates some of the uncertainty surrounding eligibility.

5. There is now more flexibility for related corporate groups. For example, a group of affiliated eligible entities may now elect to determine their qualifying revenues together on a consolidated basis. As a result, each individual member of the group could take advantage of the total consolidated revenue decline and qualify for the CEWS when they otherwise would not. Affiliated persons under the Income Tax Act include common law partners, spouses and various others. Similarly, a group of eligible entities that normally prepares consolidated financial statements may jointly decide for each member of the group to determine its qualifying revenue individually. These are highly technical issues and we strongly recommend seeking tax and accounting advice if these issue affect you. To the disappointment of many, a single corporate entity with multiple divisions cannot separate the individual divisions for the purpose of calculating revenue decline. We understand that this issue is currently under discussion between industry and the government.

6. The legislation has added greater flexibility for employers and joint ventures that earn non-arm’s length revenues. For example, if all or substantially all of the revenues of an eligible entity are from non-arm’s length persons or partnerships, that entity may jointly elect with all those persons or partnerships to calculate the revenue reduction based on a weighted average formula. Again, this is an extremely technical tax matter that goes beyond the scope of this article and requires specialized advice.

7. Eligible employers who receive the CEWS on wages paid to workers who are simply on leave with pay but not actually working (referred to by the government as furlough) are now entitled to receive a 100% refund for the employer-paid contributions to Employment Insurance and the Canada Pension Plan on those wages. For example, if the employer pays Worker A his regular salary of $50,000 during the March 2020 qualifying period and remits CPP and EI contributions on that money, but Worker A does not perform any work, the employer will be entitled to claim not only the 75% subsidy on the $50,000, but the total of the CPP and EI contributions remitted as well.

8. The legislation contains an anti-avoidance provision which disqualifies an employer from eligibility for the CEWS where the employer carries out a transaction or action that has the effect of reducing qualifying revenues and it is reasonable to conclude that one of the main purposes of the transaction or action was to cause the employer to qualify for the subsidy. It should also be noted that employers will be required to repay amounts paid under the CEWS if it is later determined they fail to meet the eligibility requirements. Further, employers will be liable for penalties of up to 50% of the wage subsidies received where the employer knowingly or is grossly negligent in submitting an application under CEWS containing false or misleading information.

9. The new provisions allow the government to extend the date of the CEWS program by regulation up to September 30, 2020. This would add up to 4 more months of eligibility if the Government deemed they were warranted. If additional qualifying periods are added, the prior reference period to be used will also be determined by regulation.

10. The legislation gives the Minister of National Revenue the authority to publicize the name of any person or partnership that has claimed the CEWS. While no information regarding the use of this policy has been made available, we believe it may be used to identify employers that have committed violations. We therefore recommend that you do your due diligence and proceed cautiously when determining if you qualify.

CEWS—10 FREQUENTLY ASKED QUESTIONS

1. Is the CEWS right for my business and my employees?

The first thing employers must do is to find out if they are an eligible employer under the CEWS and whether their employees are eligible.  As noted Bill C-14 has a great deal of criteria and conditions that must be met before an employer is entitled to be reimbursed by the Government for 75% of the wages paid.  There are also a number of penalties that might apply if an application is not properly made so caution at this first step is very important.  

Each employer will have different questions in considering whether it and its employees are eligible and for what period.  Do I use the period March 2019 to compare to March 2020 or do I use the average of January/February 2020 to compare?  Can I use the lost revenues in each division or must I take into account the entire entity? Should I calculate revenues under the accrual method or the cash method?  Are my employees working in Canada?  Do I take into account revenue I earn in the USA from sales of products produced here in BC?  

If you are satisfied that you and your employees are eligible you can then look at some of the practical business questions that arise in considering if the CEWS is right for you and your employees.  Must I apply each month?  Can I afford the cash flow as reimbursement may take some time?  Who will I bring back from layoff? Given the clear direction from the Government that the CEWS must be used in good faith, employers must be cautious if they decide to only bring some employees back to work and not others. Be sure that there is a clear rationale for doing so.

2. Who is an Eligible Employee?

An employer cannot receive reimbursement for wages paid under the CEWS unless it pays “eligible remuneration” to an “eligible employee”.  An “eligible employee” must be employed in Canada (although she not need be a Canadian citizen) by an “eligible employer” during what is defined as the “qualifying period”.  An employee will not be eligible if she did not receive remuneration for 14 or more days during the qualifying period. An employer is not obligated to bring all of its employees back onto payroll in order to claim the CEWS. On the other hand, there is no cap on the number of eligible employees or the total amount of subsidy an eligible can claim for eligible employees. For example, Air Canada has announced it intends to re-hire 16,500 workers! It is also important to note that you can claim the subsidy for new employees hired after March 15, 2020.

3. Must the “eligible employee” actually be working?

The answer is no.  The criteria remains that the employer must put the employee “on payroll” and must in fact pay them.  The employee does not have to attend at and do work.  This is consistent with the Government’s strategy to reconnect employees to their employer so that when the crisis passes and businesses can start up again, the employer is ready to go as the workforce is already in place. As noted above, the employer can claim back EI and CPP contributions for these furloughed workers.

4. Mike is my manager earning $80,000 per year and has been working continually since January 1st 2020.  Assuming I am an eligible employer and Mike is an eligible employee can I be reimbursed for Mike’s salary up to $847 per week from March 15th 2020?

The answer is yes. Assuming both employer and employee are “eligible” as defined in Bill C-14 then the criteria for reimbursement have been met, namely Mike is on payroll and Mike has been paid. In fact, the Government will be happy that you kept Mike at his pre-crisis wage.

5. Mike’s fellow employee Chris was laid off March 15th 2020 and has been receiving EI since then—Can I pay Chris retroactively to March 15th 2020 and then be reimbursed under the CEWS?

No—retroactivity only applies to employees actually being paid during that qualifying period.  You can recall Chris, put him back on payroll and pay him going forward and then apply for your CEWS, whether you bring him back to work or not.

6. In the lead up to Bill C-14 the Prime Minister and government officials were commenting that the eligible employer did not have to pay the 25% difference although they were encouraged to do so and it appeared an employer would have to have reasonable grounds for not paying the 25% difference.  Is this still the law under Bill C-14?

It appears that there was some confusion in the statements made regarding the “25% difference”. In our view, in most cases the employer will already have to pay the employee 25% more than the subsidy amount claimed in order to receive the 75% subsidy on the wages paid. For example, if Sally makes $40,000 per year (or $769 per week), then the employer will have to pay her $769 per week in order to claim the subsidy of $576 per week.

There are two exceptions to this.

If the employer has reduced the employee’s salary by more than 25% during the qualifying period, then the subsidy amount is actually the entire amount paid to that employee. For example, if Sally has been reduced by 50% to $20,000 per year (or $384 per week), then the employer can claim 100% of the wages paid to Sally under the CEWS.

Finally, if the employer has reduced the salary by less than 25% during the qualifying period, then the subsidy amount is paid on Sally’s pre-crisis salary. For example, if Sally had been reduced by 10% to $36,000 ($692 per week) then the amount of the subsidy will be based on $40,000 and not $36,000. Therefore the subsidy amount would be $576 per week.

In all cases the maximum amount of the subsidy is $847 per week per employee.

All of that said, the more recent language from the government is that employers receiving the subsidy must make best efforts to pay employees their pre-COVID-19 wages. So if your employee was laid off and prior to that was paid $80,000 the government was trying to encourage employers to bring her back at full wages.  But in order to get the full 75% subsidy the employer only needs to pay $58,725 salary to receive the maximum subsidy of $847 per week.  

While there does not appear to be a legal requirement to “top up” employees to pre-crisis wages, the government has stated that the eligible employer must make best efforts to do so. The legislation requires the application for the CEWS to include an attestation from the person who has principal responsibility for the financial activities of the eligible entity as to the completeness and correctness of the application submitted. It is possible that the application will require the employer to provide details of the best efforts made.  

Now employers have to be cautious in making changes to employees’ wages as such changes unilaterally imposed might be considered a constructive dismissal. The best solution would be to discuss a return to work (or payroll) with each employee and ensure you have their agreement as to the wages.  One scenario might be to bring the employee back to work (or at least on payroll) at the $58,700 salary but agree with the employee that when business is back to 100% their salary will revert to the pre COVID 19 level.

7. Is an eligible employer entitled to the CEWS for eligible employees paid on commission and if so how is that calculated?

The answer is yes as the commission salesperson has the normal deductions from payroll such as income tax, CPP, EI etc.  

Assuming an arm’s length employment relationship we believe the CEWS would be the lesser of the average weekly earnings from January 1st 2020 to March 15th 2020 excluding periods of 7 or more consecutive days for which the employee was not remunerated or the actual commissions earned in the qualifying period.

8. How do I apply for CEWS?

The application must be filed with CRA.  Eligible employers are only those that had on March 15th 2020 a business number registered with the CRA for remittances for income tax source deductions. As yet we do not have the actual application form from CRA.  And as noted the CEWS is only available for employees of the eligible employer who on payroll and who have actually been paid.  So there is a bit of a leap of faith here as employers risk putting employees on payroll and paying them but then finding their application for the CEWS is rejected.

9. My employees laid off have applied for CERB—can I still get CEWS?

No.  If employees are receiving the $2000 CERB the employer cannot start to pay them and then collect the CEWS.  It is an “either or proposition”.  That is why it is important to talk to each employee who has been laid off and who might have applied for CERB (or in fact been paid same) to consider if she wants to come back on payroll and be paid by you.  Also do the calculation and consider whether that employee may be better off just claiming the CERB. The government has stated that if an employee receives the CERB while being paid wages for which the CEWS is claimed, the employee will be responsible for repaying the CERB amounts. If you in fact have work for them and want them back they will need to forgo the $2000 CERB.  And it may be that some employees refuse to return to work in which case they will have in our view quit their employment and a new ROE should be issued.

10. What about employees who qualified for the leave of absence under the recent amendments to the Employment Standards Act and are now ready to return to work—can I reduce their income or not have them show up for work?

It is a bit unclear how the Employment Standards Act mandatory COVID-19 leave provisions (similar to maternity leave) will apply to employers trying to access the CEWS.  The Act requires employers to put the employee back in the same or comparable position as they held at the time of the leave.  It is not clear how the two Acts work together but in those circumstances it is our view the employer must take the employee back at their regular wage or lay them off.

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Table of Contents

• What's New - 10 Key Changes
• Employment Law Considerations - FAQs

Note to our Readers: Information regarding COVID-19 is rapidly evolving. We are working to bring you up-to-date articles as the legal issues unfold. This is not legal advice. If you are looking for legal advice or are dealing with an issue in relation to COVID-19, please contact our Employment & Labour Group: Chris Drinovz at [email protected], Mike Weiler [email protected], Melanie Booth at [email protected], or Jesse Dunning at [email protected] or our Tax Group: Kevin Scott at [email protected]

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April 19, 2020 Update - Our Group hosted a Q&A webinar to answer some of your questions! Review the Webinar recordings and Q&A in our blog post Let’s Talk: Questions about Covid-19, The Workplace and Your Business

April 14, 2020 Update: For further details, please read our recent detailed post on Canada Emergency Wage Subsidy Is Now Law! What’s New & Employment Law Considerations

Canada Emergency Wage Subsidy - KSW Article - Download PDF

On Friday March 27th 2020, the Prime Minister announced a wage subsidy of 75% for qualifying businesses. After much discussion and lobbying the government made changes to its proposal and on Wednesday April 1st 2020 the Department of Finance announced the new Canada Emergency Wage Subsidy (“CEWS”). The details were contained in a Press Release entitled “Government Announces Details of the Canada Emergency Wage Subsidy to Help Businesses Keep Canadian in their jobs”. As well the government provided details on its web site here. Most importantly Minister Morneau held a press conference April 1st 2020 where he provided important details and answered questions.

Normally when reporting to you about significant government policy we would wait for the actual legislation, regulations and would follow the debates on same in Hansard. While the Press Release, Government web site posting and Minister Morneau’s comments are very useful in understanding where the government wants to go with this program and while they provide some more important details, the fact is there is no draft legislation nor regulations and the House will have to sit at some point to pass the enabling legislation. Unfortunately there are many “interesting questions” that cannot be answered with certainty at this point. At the same time you want a summary of what we know today and where there may be issues to consider. Many businesses will decide to wait until they see the legislation before they take action; others will want to rely on what we know to date and begin the process of bringing employees back to work or discussing with their employees currently working how this subsidy will impact their jobs.

With that in mind and in order to bring you up to date on matters as they stand now, we offer the following analysis.

The overall policy objective of the CEWS is to help businesses keep and return workers to their payroll through the challenges posed by COVID-19. As such, the wage subsidy aims to prevent further job losses, encourage employers to re-hire workers previously laid off, and help better position Canadian businesses to more easily resume normal operations following the crisis. As a result of information released over the course of the week, we now have a partial idea of how the CEWS will operate to achieve these objectives:

• Eligible employers include individuals, taxable corporations and partnerships, and non-profit organizations and registered charities; it does not include public employers, including schools and municipalities;  
• In order to qualify for the subsidy, an eligible employer must have suffered a decline in gross revenue of at least 30 percent during the eligible period being applied for; there are currently 3 eligible 4-week periods:

• Period 1: March 15 to April 11, 2020;
• Period 2: April 12 to May 9, 2020;
• Period 3: May 10 to June 6, 2020;

• Eligibility is generally determined by the change in monthly revenues, year-over-year, for the calendar month in which the period began. For example, if revenues in all of March 2020 were down 50 per cent compared to March 2019, the employer would be allowed to claim the CEWS on remuneration paid between March 15 and April 11, 2020 (Period 1 above). Similarly, a comparison between the month of April 2020 over April 2019 would be used for Period 2 and May 2020 over May 2019 for Period 3. Importantly, the amount of wage subsidy provided under the CEWS in any given month would be ignored for the purpose of measuring the decline;
• For businesses established after February 2019, eligibility will likely be determined by comparing monthly revenues to a reasonable benchmark, such as the previous month(s);  
• A for-profit employer’s “revenue” will be its revenue earned from business carried on in Canada from arm’s-length sources; the employer’s normal accounting method would be used to calculate revenue and extraordinary items and amounts on account of capital will be excluded from revenue. Employer will be required to attest to the decline in revenue in making the application;  
• The definition of revenue for non-profits and charities will be determined on a case by case basis following consultation with each sector;
• The wage subsidy will cover up to 75% of an employee’s wages on the first $58,700 of annual salary (a maximum of $847 per week). For example: a floral shop in BC has four full‑time employees, each earning $800 per week, and 6 part-time employees, each earning $400 per week, for a total weekly payroll of $5,600. The shop is closed during the pandemic and only fulfilling online orders. They are keeping all of their employees on the payroll at 100% wages, despite revenues being down by 30 percent. This business would be eligible for a weekly wage subsidy of $4,200 ($600 for each of their full-time employees and $300 for each of their part-time employees);
• A special rule will apply to employees that do not deal at arm’s length with the employer.  The subsidy amount for these employees will be limited to the eligible remuneration paid in any pay period between March 15 and June 6, 2020, up to a maximum benefit of $847 per week, or 75% of the employee’s pre-crisis weekly remuneration; we expect there to be further clarification on this exception;  
• Eligible remuneration appears to include salary and wages and other remuneration subject to tax withholding, and likely commission and bonuses, but does not include severance pay, or items such as stock options or personal use of a corporate vehicle;
• Importantly, entitlement to the CEWS will be based on the salary or wages actually paid to employees. Therefore the employer must pay the employees first and receive the subsidy on remuneration actually paid and shown as such;
• There is no cap on the number or category of employees who can be subsidized nor on the overall amount an employer can claim;
• Employers will be expected to make “best efforts” to top-up employees’ salaries to 100% of the maximum wages covered and will be required to attest to this in the application;  
• The amounts received under the CEWS would be included in the employer’s taxable income but presumably this would be offset by the additional salaries paid;  
• Applications will be made through the CRA’s My Business Account portal as well as a web-based application; an employer must re-apply for the subsidy each additional month it is claimed for;
• It is expected that the portal will be opened for applications in three to six weeks;
• There will be anti-abuse rules and penalties proposed to ensure the subsidy is not inappropriately obtained and that employees are paid the amounts they are owed. The government may create new offences for individuals or businesses who provide false or misleading information to obtain access to the benefit or who misuse funds obtained under the program; the penalties may include fines or even imprisonment;
• Employers not eligible for the CEWS may still apply for the previously announced 10% wage subsidy from March 18 to June 20, which is limited to up to $1,375 per employee and $25,000 per employer. For employers eligible for both subsidies, any benefit from the 10% wage subsidy for remuneration paid in a specific period would generally reduce the amount available to be claimed under the CEWS in that same period;
• An employer will not be eligible for the CEWS in a week that falls within a 4-week period for which the employee is eligible for the $2000 Canadian Emergency Response Benefit.

There are many questions that remain unanswered which we hope will become clearer in the days and weeks to follow. These include:

• When will the CRA portal be open, how long will the application process take, and what materials will be required? It is likely that in order to streamline the delivery of funds, the government will only require an attestation now and require back-up later. The government has noted that if it approves an application but later determines an employer does not qualify, the employer will have to repay the subsidy. Employers are wise to keep good records of their calculations.
• How long until funds are actually released to employers? We expect that after the portal is opened in three to six weeks and applications are received, there will be some additional delay until the actual delivery of funds.
• How does the retroactive portion of the subsidy work? It would appear that making the subsidy retroactive to March 15, 2020 is intended to cover employers who have kept some or all of their employees on payroll since that date. We query whether or not wages paid to employees that have been recalled from layoff and then paid retroactively could also be subject to the subsidy. If the employees have already been paid EI benefits, this may complicate things.
• Must employees actually perform work in order for the employer to claim the wage subsidy or can they simply be kept on payroll? Based on the current information provided, it appears that performing work is not a requirement to receive the subsidy. What is required is that employees be on payroll and be paid.
• If employees are simply put back on payroll and work is not available, must the employer still make best efforts to top-up wages? The government has stated that it expects businesses to do everything in their power to top-up employee’s wages to their full amount. That said, Minister Morneau appears to have recognized that this will not be possible in every situation.
• What exceptions will be made for startups or small firms with highly variable income and how flexible will the test be to establish the decline in revenue? Given the stated policy objectives, we expect the revenue comparison test to be reasonably flexible. As a result, businesses who might not qualify under the conventional test should think creatively about how they might show declining revenues.
• Does the 30% decline in revenue have to be related to COVID-19? At this time, there does not appear to be a requirement of a direct or indirect connection to COVID-19. We expect this will be a case-by-case determination.
• Will the CEWS program be extended beyond 12 weeks? Given that some provincial government officials have announced social distancing measures will likely continue into the summer months, it is possible that the government will consider extending the CEWS beyond 12 weeks. We will continue to monitor the situation carefully.

• It appears that employers who wish to access the subsidy will have to incur payroll costs now and hope to receive the subsidy at a later date. Employers who want to retain their workforce in the face of significant revenue declines should carefully review the published criteria before making decisions about the workforce.
• The government has stated that: “employers would have to keep records demonstrating their reduction in arm’s-length revenues and remuneration paid to employees”. As such, start reviewing and analyzing your financials now with a view to establishing the appropriate paper trail and due diligence for showing revenue decline and monies paid to employees for which you will seek the subsidy. This may include creating a Memo to File or consulting with your accountant or other professional.
• Analyze your current workforce and the work you have available. Communicate with any employees you have laid-off to determine who might be available to return to work and in what capacity. Find out how many employees have applied for the CERB and make note of this. Consider how you can provide meaningful work to employees for which you intend to claim the subsidy.
• We have noted in our previous articles that layoffs, even temporary layoffs may be considered a constructive dismissal at common law or a termination under the Employment Standards Act. Be mindful that if you bring employees back to work under the subsidy but fail to top-up their salary to 100%, this may also trigger a constructive dismissal claim and/or a claim for termination pay under the Employment Standards Act. The same considerations apply if you substantially change an employee’s position or duties. If the employee agrees to come back at a reduced wage or in a different position, carefully document this agreement.
• For employers that may qualify for both the 10% wage subsidy and the CEWS, it is worthwhile to take advantage of the 10% wage subsidy now as it will simply be deducted from any future CEWS payment for the same period. More details on this program here: https://www.canada.ca/en/revenue-agency/campaigns/covid-19-update/frequently-asked-questions-wage-subsidy-small-businesses.html
• Employers in need of additional financial relief pending approval of the CEWS may wish to consider availing themselves of the various new credit options being extended by the federal and provincial governments and other sources, including the new Canada Emergency Business Account. Various tax deferrals and other sources of credit have also been announced provincially and federally to give employers increased liquidity.
• As the economic downturn will likely continue past the timeline of the CEWS program, employers may wish to also consider the Federal Government’s existing Work-Share and Supplemental Unemployment Benefits (SUB) Programs. Please contact us for further details on these programs.

Note to our Readers: Information regarding COVID-19 is rapidly evolving. We are working to bring you up-to-date articles as the legal issues unfold. This is not legal advice. If you are looking for legal advice or are dealing with an issue in relation to COVID-19, please contact our Employment & Labour Group.

The use of handheld devices while driving is banned in British Columbia. In this blog post, I will focus specifically on the use of electronic devices while driving, not on other forms of distraction, such as eating or talking with other passengers.

Using an electronic device while driving can lead to a ticket of $368 and 4 penalty points, which amounts to $175, leading to a total fine of $543.

Part 3.1 – Use of Electronic Devices While Driving in the Motor Vehicle Act, RSBC 1996, c. 318 sets out the specific rules and prohibitions.

Even holding a phone in your hand without speaking or texting can lead to a distracted driving ticket, as noted in a 2018 BC Provincial Court case, R. v. Bainbridge, 2018 BCPC 101. Furthermore, charging a phone at a red light is also considered distracted driving (R. v. Jahani, 2017 BCSC 745).

You are not allowed to use hand-held cellphones and other electronic devices with transmitting functions while driving. Under section 214.1 of the Motor Vehicle Act, electronic devices are defined as:

(a) a hand-held cellular telephone or another hand-held electronic device that includes a telephone function,

(b) a hand-held electronic device that is capable of transmitting or receiving electronic mail or other text-based messages, or

(c) a prescribed class or type of electronic device

Use of electronic devices is defined as:

(a) holding the device in a position in which it may be used;

(b) operating one or more of the device’s functions;

(c) communicating orally by means of the device with another person or another device;

(d) taking another action that is set out in the regulations by means of, with or in relation to an electronic device.

You are allowed to use your device in hands-free mode, such as with a Bluetooth headset or with the integrated speaker function in a vehicle. However, if you have an L (Learner’s) or N (Novice) licence, then you are not allowed to use the device at all, even in hands-free mode. There are certain exceptions for emergency personnel.

According to the Canadian Automobile Association (CAA), distracted driving involving a cellphone can increase your chance of a crash by 8 times.

Using electronic devices while driving can not only lead to a violation ticket and penalty points, but also liability if you are involved in a car accident. It can also prevent you from successfully suing the other party.

In the case of Rollins v. Lovely, 2007 BCSC 1752, the defendant was looking down at his ringing cell phone, and liability was apportioned to him at 90%.

In the case of Shaver v. Lymbery, 2012 BCSC 978, the plaintiff sued for soft tissue injuries she suffered in an accident. However, she was unsuccessful in proving liability, as she was using her cellphone during the accident.

Contact Peter Unruh, Personal Injury Lawyer in BC

If you have been injured in a car accident, Peter Unruh will review your case to determine if you should be compensated beyond ICBC Part 7 benefits for your injuries. The extent of your injuries and fault for the collision needs to be assessed in order to arrive at whether you have a personal injury case for compensation. Call Peter Unruh today, personal injury lawyer in Abbotsford, at 604-746-4357.

By: Chris Drinovz & Japreet Lehal

Employers dismissing short service employees, be wary! A recent trend has been developing in British Columbia trial-level decisions towards higher common law reasonable notice awards for employees with shorter lengths of service. In our inaugural KSW Workplace Law blog post, we examine this trend in greater detail as presented in the following trio of cases decided less than a month apart.

In Greenlees v. Starline Windows Ltd., 2018 BCSC 1457 (August 29, 2018), a 43-year-old Mr. Greenlees quit his previous employment and accepted a sales job with the defendant window company after receiving a cold call promising the potential to earn $100,000 per year. Mr. Greenlees had a written employment agreement but it did not address severance. After only six months, Starline terminated employment without cause. Despite getting no reference letter, Mr. Greenlees engaged in significant mitigation efforts, applying to 3 recruitment firms and 42 companies. After 8 job interviews, he found another job 7 months post-termination.

Mr. Justice Gomery began his analysis with reference to Saalfeld v. Absolute Software Corp, 2009 BCCA 18 (“Saalfeld”) where the BC Court of Appeal suggested a benchmark for short service cases of two to three months’ notice for a nine-month employee, to be adjusted in other cases for age, length of service, and job responsibility. Most significant to the upward adjustment was the limited availability of alternative employment. The court found that it could draw an inference as to this fact due to the plaintiff’s lengthy but unsuccessful job search, made even more difficult by Starline’s failure to provide a reference letter. His Lordship also found (para 52) that Starline had induced the plaintiff to quit his old job (para. 54) though this factor was only given modest weight as the case was “close to the line”. For these reasons, Mr. Greenlees received six months’ notice.

Mr. Justice Gomery ruled again a few days later in Corey v. Kruger Products L.P., 2018 BCSC 1510 (September 4, 2018). Here, the plaintiff was hired as a maintenance supervisor at 55 years old. His written employment agreement provided for a starting salary of $100,000 but was silent on the issue of termination. His duties and responsibilities were middle management and included supervision of highly-paid specialized tradespersons at the defendant’s tissue paper manufacturing facility. Mr. Corey was terminated without cause after 2 years and 7 months. He was 57 years old at termination and 58 by the time of trial.

After a summary trial on the issue of damages, the same Mr. Justice Gomery awarded 8 months’ notice. The starting point of the analysis (para. 30) was again Saalfeld and an adjusted “benchmark” of four to five months’ reasonable notice for “middle management employees with supervisory responsibilities and two to three years of service” such as Mr. Corey. That was not the end of the analysis however as his Lordship then concluded (para. 50) that “Mr. Corey’s age and the lack of availability of suitable alternate employment justify a somewhat longer notice period than would otherwise be the case.” While Mr. Corey had made diligent search efforts (10 applications, 2 interviews) he had not found new employment. The court found that his age was a factor in this as well (para. 47) as it made Mr. Corey less competitive having “fewer years of service to offer to prospective employers." This case is interesting in that the trial was heard on August 17, 2018, only five months after the date of dismissal. Kudos to counsel involved for efficiency!

Approximately three weeks later, the reasons for judgment for Chapple v. Big Bay Landing Ltd., 2018 BCSC 1666 were released. This case was also determined by a one-day summary trial on the basis of an agreed statement of facts. Mr. Chapelle was hired as the “Remote Resort Manager” for the defendant’s resort on Stuart Island with an annual salary of $84,000. After working for 26 months, Mr. Chapelle was terminated without cause at the age of 61 years old. He was then unemployed for 12 months before finding replacement work.

As Mr. Chapelle did not have a written employment contract, the length of reasonable notice was the main issue. Mr. Justice Steeves turned to Saalfeld here as well, noting the plaintiff was “entitled to notice longer than, for example, the rough rule of one month per year of service that is sometimes used”. The court found that Mr. Chapelle’s work was “somewhat specialized and the opportunities for work in the resort lodges in coastal British Columbia are limited”. As a result, he awarded 9 months’ notice.

Takeaways

Employers and employees alike would be wise to consider the following takeaways arising from this trio of cases:

• The starting point for short-service employees is the two to three-month benchmark established for a nine-month employee in Saalfeld to be adjusted in each case with reference to age, length of service, and job responsibility.
• The above “benchmark” may be increased to four or five months’ notice for a middle-management employee with two to three years’ service.
• Factors such as age, inducement, specialized industry, and the unavailability of similar alternate employment in the face of strong mitigation efforts may increase the notice period upward from the benchmark into the range of six to nine months. 
• None of these employers had a written termination provision! These significant liabilities for short service employees can be reduced through the use of carefully drafted termination of employment clauses.

If you are an employer or an employee seeking advice regarding your employment relationship, the Workplace Law Practice Group at Kane Shannon Weiler LLP would be pleased to speak with you. Please contact us at [email protected] or 604-746-4357.

By: Melanie D. Booth

An effective Return to Work Program (RTW) is important to support employees who have faced an illness or injury. The program is intended to help employees who want to work in some capacity during their recovery phase. This would include working in a different capacity than their usual work duties, such as in a temporary or limited role. Of course, there is a benefit to employers in facilitating early re-entry to the workforce after an employee’s injury to avoid longer-term absences and the associated costs.

In this blog post, we outline some steps for employers on how to develop an effective return to work program. For legal advice tailored to your specific circumstances, please contact us.

Develop a stay at work/return to work (RTW) policy

The first step that you can take is to create a Stay at Work/Return to Work policy. You should consider the injuries that are to be covered by the policy, including work-related (WorkSafeBC), non-work related (sporting injuries, MVA, slips and falls, and other STD and LTD claims) and other clauses. For each of the positions within the company, you can prepare a physical job demand analysis. In addition, it is recommended that you create an Occupational Fitness Assessment form for employees to provide to their medical provider (GP) to assess their ability to work with more specificity. A Weekly Assessment Form will allow you to monitor the employee’s progress on a weekly basis. There should be a position/job role for a RTW coordinator at your company to facilitate the program with interaction from supervisors and management. It is important that you educate and train staff and management regarding the RTW policy and plan.

Communicate the policy to staff

You should communicate this RTW policy and plan to staff through various channels, so that they are fully aware of the policy. Orientation, staff/department meetings, and tool box talks can help spread the message through the workplace. One-on-one meetings between employees and the managers can also help. Newsletters, notes on pay stubs, and posters/memos on bulletin boards can raise awareness. Sending an email about the policy and putting it on the website can also be effective.

Once an employee notifies the employer they have an injury and that they are unable to work

Once you have been informed by the employee that they have suffered an injury and they are unable to work, you should communicate with them regarding the reason for their absence. It is a good idea for the supervisor to take notes of this conversation. You should consider whether a modified work schedule is appropriate and then coordinate with the RTW coordinator and Human Resources accordingly. The RTW coordinator should provide the employee with a letter/written notice that modified work is available and reasonable accommodation will be made. An employer’s duty to accommodate includes multiple aspects and legal advice should be sought for further information.

It is recommended that the RTW coordinator provide an Occupational Fitness Assessment form and Job Demand Analysis form to the employee for their GP to complete to assess their ability to return to work. The RTW coordinator should be the continuous source of follow-up with the employee. Weekly follow-ups ensure that documents are completed and that the employer stays in the loop. A Weekly Assessment Form can be used to record follow up communications with the employee.

The RTW coordinator would then review the completed documentation and determine the appropriate Return to Work position for the employee. This step may require further consultation with the GP, physiotherapist, other specialists or an independent medical exam (funded by the employer). 

Define the RTW Plan

Defining the Return to Work plan includes setting goals and providing details on the work modifications that will be made. The modifications can include:

1. increasing the frequency of breaks
2. performing pre-injury duties for half days only
3. change of shift
4. different start/end times
5. varying the hours of work
6. job rotation
7. telework/work at home
8. allowing time away for medical appointments
9. not performing duties requiring a specific action for a specified period of time
10. assistance with heavy lifting from fellow co-workers (time-limited)
11. ergonomic changes to the workstation
12. assistive devices (software, lift assists, etc.)
13. supply personal protective equipment over and above what is required by WorkSafeBC

You can consider the assignment of other duties not originally part of pre-injury duties that are permissible given the medical limitations of the employee. There can also be a placement in another position.

The timeframe for progress and restrictions and a follow-up schedule should also be included in the RTW plan.

Managing resistance by an employee to the RTW plan

If the employee does not agree with the RTW plan, you should consider the company’s HR policies, applicable legislation and the medical information on file to formulate an appropriate plan accepted by the employee, RTW coordinator and medical treaters. If the employee refuses to complete the job that is being offered despite the medical ability to do so, you should seek legal advice before discontinuing the employee’s employment.

Effective communication of the plan and support by management, supervisors and first aid attendants is crucial to ensure that the RTW plan is implemented. This framework will need to be set up prior to a workplace injury.

RTW Coordinator to evaluate the success of RTW plan

After implementing the Return to Work Plan, the RTW Coordinator should assess and evaluate how successful the plan has been. It is important to keep statistics and details on the injuries. This should include description and frequency of injuries, as well as the injury severity rates. The number of RTW plans initiated and their results should also be noted down and evaluated. You should also look at the methods of communication and timeframes, education and training scheduled, and preventative programs initiated.

Managing workplace injuries

For workplace injuries, consider each decision made by WorkSafeBC and seek legal advice immediately as timelines for appeal are short. They can be 90 days or less, depending on the decision. You should consider defending against causation at the outset, if applicable, and seek legal advice regarding the defence and investigation of claims early on. Where an employee has pre-existing injuries and/or conditions that may protract their workplace injury or disability, review any relief of costs decision from WorkSafeBC closely with legal advice to help minimize claims costs.

If you are an employer seeking advice on developing an effective Return to Work program or other workplace law matters, the Workplace Law Practice Group at Kane Shannon Weiler LLP would be pleased to speak with you. Please contact us at [email protected] or 604-591-7321.

By: Chris Drinovz and Japreet Lehal

In our first blog post of 2019, we look back at some of the key cases and developments in BC employment law for 2018.

5. BC Human Rights Commission Re-Established

In November 2018, the provincial government introduced Bill 50 – Human Rights Code Amendment Act, 2018, which re-established a BC Human Rights Commission. The Bill received Royal Assent on November 27, 2018. For more than a decade and a half, BC did not have a Commission. Prior to this recently introduced legislation, BC was the only province in Canada without a human rights commission, after it was ended in 2002 by the provincial government of that time. The Bill follows the 25 recommendations that were outlined in the report of Ravi Kahlon, Parliamentary Secretary for Sport & Multiculturalism along with 8 weeks of public consultation.

The amendments create an independent human rights commissioner and office with a mandate to promote and protect human rights in the province. Under section 47.12, the commissioner is given broad powers to further this mandate including the ability to intervene in Tribunal complaints, create and develop guidelines for institutions, publish reports and make recommendations, deliver public education, support research, and consult with organizations regarding human rights issues.

We will be closely monitoring how the Commission is rolled out this year and look forward to seeing how it begins to address systemic injustices and patterns of discrimination proactively.  To view Bill 50 – Human Rights Code Amendment Act, 2018, please visit the following link: https://www.leg.bc.ca/parliamentary-business/legislation-debates-proceedings/41st-parliament/3rd-session/bills/third-reading/gov50-3

4. Shorter is Better?

A series of reasonable notice cases involving short-service employees has reinforced the notion that a lengthy tenure is not absolutely crucial to receiving a longer reasonable notice period. These cases included:

• Greenlees v. Starline Windows Ltd., 2018 BCSC 1457: a 43-year-old salesperson was entitled to six months reasonable notice after only six months of employment. Important factors included the limited availability of alternative employment, made even worse by the employer’s failure to provide a reference letter. We note that inducement was also a factor. 
• Corey v. Kruger Products L.P., 2018 BCSC 1510: A 58-year-old maintenance supervisor received eight months’ reasonable notice after working only 2.5 years. Key factors were his age and unavailability of similar employment despite diligent search efforts. 
• Chapple v. Big Bay Landing Ltd., 2018 BCSC 1666: A 61-year-old resort manager received nine months reasonable notice after working for just over two years. Again, age was a factor, along with the specialized nature of the work. 

To read more about this issue, please click on the link to our blog post titled, Increased Reasonable Notice Period for Short Service Employees.

3. Employment Standards Amendments Recognize Changing Workplace

British Columbia’s Bill 6, Employment Standards Amendment Act, 2018 received Royal Assent on May 17, 2018, and came into force on that day. The amendments to Employment Standards Act include a longer period of job protection for pregnancy/parental leave, an increase of the available time for compassionate care leave, and two new unpaid job-protected leaves (for eligible employees upon the disappearance of a child due to a suspected crime and upon the death of a child under 19 years of age for any reason).

Even more significant amendments to British Columbia’s employment standards legislation are in the works. In 2018 after much consultation, the BC Law Institute released its Report on the Employment Standards Act. The report is the final publication in connection with BCLI’s Employment Standards Act Reform Project, which began in 2014 and is the first comprehensive, independent review of the Act since the early 1990s. 

The 300-page report contains 71 recommendations for changes to the Act to address contemporary and evolving circumstances in the 21st-century workplace. The introduction to the report provides the following interesting comments in this respect: 

“Today’s workplace is markedly different from the workplace of the mid-to-late twentieth century. Digital technology, changes in the composition of the workforce, and competitive pressures resulting from globalization, among other factors, have transformed the working world. Long-term, relatively secure full-time employment has increasingly given way to less secure temporary and part-time employment. New kinds of working relationships strain the boundaries of the traditional categories of “employee” and “independent contractor.” There is pressure from employers and employees alike for greater flexibility in patterns of work. These paradigm shifts make the revision and modernization of legislation governing the workplace timely and essential.”

You can review the Report on the Employment Standards Act here. We will continue to carefully monitor the legislature to see how many of the proposed changes are implemented into law.  

2. Duty of Good Faith Expands

The duty of good faith and honest performance in the execution of contract duties has continued to expand since the Supreme Court of Canada laid new ground in the Bhasin case. This is now one of the most exciting and fruitful developing aspects of employment and employment-like contract analysis. An interesting precedent from Ontario was set in 2018 and is becoming influential in this province as well.

The case of Mohamed v. Information Systems Architects Inc. 2018 ONCA 428, actually dealt with a six-month independent contractor arrangement (ICA) between the plaintiff, Mr. Mohamed and Information Systems which was an employment-like relationship. Prior to signing the ICA, Mr. Mohamed had disclosed the fact that he had a dated criminal record arising from an incident in high school. Information Systems engaged him nonetheless after he passed security checks. One month into the engagement, Mr. Mohamed was sent to work for Canadian Tire, a client of Information Systems. Canadian Tire found out about Mr. Mohamed’s past and requested that he be removed from the job due to their internal policies. Information Systems, in turn, terminated Mr. Mohamed under the ICA on the basis of his criminal record relying on its language which gave them nearly unfettered discretion to terminate the agreement.  

The appeal court found that terminating Mr. Mohamed’s engagement after he had disclosed the criminal record and passed the security checks only one month earlier was not a good faith exercise of the company’s rights under the termination clause. As a result, Mr. Mohamed was entitled to damages equivalent to what he would have made in the remaining five months of the term of his engagement. 

Mohamed was applied in BC in Lightstream Telecommunications Inc. v. Telecon Inc., 2018 BCSC 1940. This case involved a commercial but employment-like relationship between two contractors whereby the defendant Telecon had accused one of the plaintiff’s key workers of stealing tools and had terminated the agreement as a result. A proper investigation would have revealed that the worker had in fact not stolen the tools but signed them out in accordance with the accepted procedure. Madame Justice Russell found that the defendant’s lack of a thorough investigation into the matter and consideration of unreliable evidence constituted a breach of its duty of good faith as follows:

[104] I am guided in this analysis by the reasoning in Mohamed v. Information Systems Architects Inc., 2018 ONCA 428. In that case, a contractor disclosed his criminal record before he signed an Independent Consulting Agreement (the “ICA”) with a company. A month into the contract, one of the company’s clients found out about the contractor’s criminal record and requested that the company remove the consultant. The company did so without trying to secure the customer’s agreement to continue the project and subsequently did not consider the contractor for any other roles before terminating the ICA. The Court of Appeal agreed with the trial judge that this lack of effort in finding any solution other than outright dismissal was a breach of the company’s duty of good faith. I would likewise find that Telecon taking no steps to find a solution other than Wray’s permanent removal, let alone consider such a solution, was a breach of their duty of good faith.

[105] I accept that the allegation of theft was sufficient to remove a subcontractor from the load for fear that the allegation would reflect poorly upon Telecon to Telus, pending a thorough and careful investigation by Telecon. I accept that Telecon’s business is premised on the honesty and integrity of its subcontractors because Telecon’s business viability is reliant upon Telus providing it work. Telus’s performance requirements are stringent and the possibility of theft by a subcontractor could be prejudicial if no action were taken. However, the lack of any such subsequent thorough and careful investigation to justify Telecon’s continued position that it would not work with Wray ran directly against their duty of good faith.

[106] Telecon did not allow Lightstream to meaningfully present its case as to why Telecon should reconsider its position. Telecon did not appear to justify its position at all to Lightstream other than to say that theft was a serious matter. I find that Telecon’s lack of any accountability for its investigation to be rooted in a lack of good faith. Telecon relied upon unreliable evidence and was unreasonable in their justification for permanently removing Wray from the load.

The implications for employment law as this doctrine develops are enormous. These decisions suggest that employers may need a good faith reason to terminate a contract and in order to rely on a termination clause.  The threshold for what constitutes a good faith reason for termination remains unsettled. Can an employer terminate an employee because they are not a “good fit” for the company? Will the employer have to prove the employee was not a good fit?

This decision adds an additional layer of uncertainty to the enforceability of termination clauses in employment contracts.  For now, what is clear is that employers need to carefully consider their reasons for termination, regardless of the existence of an enforceable termination clause. 

1. Radical Change to the Law of Consideration

Coming in at number one is the extraordinary change to the law of contract determined by the BC Court of Appeal in Rosas v. Toca, 2018 BCCA 191 [Rosas]. While not an employment law case, the implications for employment law are far-reaching. Rosas won a $4.163 million lottery. She loaned her friend, Toca, $600,000 interest-free and requested a pay-back of the loan in a year. Seven years later, Toca had still not repaid the loan and as her friend, Rosas had repeatedly agreed to extend the loan an additional year. Finally, Rosas finally demanded it back but Toca would not pay. Rosas sued Toca, but Toca argued that the applicable six-year limitation period had elapsed. In particular, she said the gratuitous extensions for payment she received did not constitute an amendment of the original contract as no fresh consideration had been provided.

Chief Justice Bauman, for the BC Court of Appeal, canvased the evolution of the doctrine of consideration in contract law and decided that fresh consideration is no longer required to vary the terms of an existing contract. Essentially, the Court was of the view that the legal requirement for consideration has been so rigidly applied that it has created room for injustice. The application and formality of an artificial rule like consideration can no longer be used as a tool to allow parties to avoid their legal contractual obligations:

[183] …When parties to a contract agree to vary its terms, the variation should be enforceable without fresh consideration, absent duress, unconscionability, or other public policy concerns, which would render an otherwise valid term unenforceable. A variation supported by valid consideration may continue to be enforceable for that reason, but a lack of fresh consideration will no longer be determinative.

The enforceability of such variations remains subject to the usual defences of duress, unconscionability, and public policy concerns of course.

While not yet considered in an employment law context, Rosas has potentially far-reaching implications. Consideration has always been required to support changes made to an employment contract during employment. For example, an employer cannot enforce a change to an employment contract such as the introduction of a limitation on severance pay or non-competition covenant, unless it has given fresh consideration to the employee in exchange. It will be very interesting to see if the special considerations present in an employment law relationship such as the power and resource imbalance between employer and employee will influence the interpretation and application of Rosas going forward.   

If you are an employer or an employee seeking advice regarding your employment relationship, the Workplace Law Practice Group at Kane Shannon Weiler LLP would be pleased to speak with you. Please contact us at [email protected] or 604-746-4357.

By: Japreet Lehal

A Step in the Right Direction to Protect Migrant Workers

In November 2018, the provincial government passed the Temporary Foreign Worker Protection Act (the “Act”). It was introduced by the BC Minister of Labour, Harry Bains. The regulations will be introduced this year and we look forward to seeing how this legislation is implemented. The legislation is intended to ensure that recruiters and employers are regulated and prevented from exploiting temporary foreign workers (“TFWs”).

They are employed in industries such as agriculture, hospitality, construction and in care-giving roles. Thousands are employed in British Columbia. In 2017, there were 16,865 TFWs here.

Migrant workers face numerous hardships. A March 2018 report, Envisioning Justice for Migrant Workers: A Legal Needs Assessment, by the Migrant Workers Centre outlines many of the issues they face. In one case, an employee was fired simply for pointing out that the duties she was asked to do were not mentioned in her employment contract (page 33).

A migrant worker expressed concerns about how raising a voice against injustice in the workplace can even lead to homelessness (page 36):

“Most caregivers, we are afraid to file a complaint about our rights because if something happens then we are on the streets. It is not the same thing like if I work for a company but I have my own house and I go home everyday, if I make a complaint and get fired I would still have a house. For us, if we make a complaint and get fired it’s like ‘sorry you have to sleep on the streets so I think that most people don’t complain even if the situation is bad because where are you going to live. I have talked to a lot of people who are in bad situations with their employers and people tell them that they have to report it. But if you need to find a new employer it can take like 4 to 6 months to do all the paperwork and where are you going to live in that time and so they are scared (Focus Group 1, July 28, 2017).”

Under the new law, a foreign worker recruiter will have to apply for a license. A licensed foreign worker recruiter registry and registered employer registry will be introduced, requiring online registration by recruiters and employers. Recruiters and employers are prohibited from misleading workers, taking and holding their passports, mispresenting work opportunities, making threats of deportation for no lawful reason, and threatening workers if they complain or are involved in an investigation against their employer (Section 20).

An employer or recruiter is not allowed to charge the employee for the recruitment services, either directly or indirectly (Section 21). There are disclosure requirements if the recruiter is referring the foreign national to someone else and is receiving some sort of fee or compensation for this. The recruiter needs to put this in writing to let the foreign national know (Section 22). If the recruiter is providing immigration services as well as providing an employer with recruitment services, then there are certain requirements that this recruiter needs to meet, discussed in further detail in Section 23 of the Act.

A complaint to the Director has to be made within two years of the contravention being alleged and it has to be delivered in writing to an Employment Standards Branch office, as per Section 33 (2). The Director can also start an investigation, regardless of whether the Director received a complaint or not (Section 32).

A contravention of this Act can lead to a monetary fine or even jail time. An individual can be fined up to $50 000 or imprisonment up to one year (Section 80(2)(a)). A corporation can be fined up to $100 000 (Section 80(2)(b)).

I will now turn to some cases that have involved TFWs and workplace law.

Dominguez v. Northland Properties Corp. (c.o.b. Denny’s Restaurants), [2012] B.C.J. No. 443, BCSC 328 was a class proceeding by 75 people, which was certified against the defendants. The plaintiff claimed that the defendants did not provide them with overtime pay and did not give them the amount of work they were promised. The plaintiffs also alleged that the defendants did not give them money to travel from their home country and the agency recruitment fees (para. 2).

A settlement in the amount of $1.425 million was made in 2013 (Dominguez v. Northland Properties Corp. (c.o.b. Denny’s Restaurants), [2013] B.C.J. No. 527, BCSC 468). The terms of the settlement agreement included: work hours, overtime, airfare costs, agency fees, donations and release. The donations were to be made to an organization helping temporary foreign workers and a children’s charity (para. 17).

In 2017, a Determination was issued by a delegate of the Director of Employment Standards, which was about an individual, Mr. Brijesh Mohan, who was in Canada as a TFW and was working as a cook for a restaurant. He was not paid overtime pay, and his employer contravened other sections of the Employment Standards Act as well. He was awarded $32,702.43. His employer also had to pay administrative penalties of $3,000.00. Paragraph 17 of Right Choice Products Inc. (Re), 2018 BCEST 56 states:

“The Director made several findings of fact: that Mr. Mohan worked 12 hours a day, 6 days a week, commencing November 9, 2016, and ending, but not including, February 16, 2017; that Mr. Mohan was not paid for all regular hours worked; that Mr. Mohan worked four hours of overtime every Tuesday through Saturday for which he received no overtime pay; that Mr. Mohan qualified for and worked three statutory holidays for which he was not paid in the manner required under the ESA; that Mr. Mohan was owed 4% annual vacation pay on wages found owing to him; that Mr. Mohan voluntarily resigned employment on February 16, 2017, and was not owed compensation for length of service; and that RCP contravened section 8 of the ESA, misrepresenting wages and hours of work in order to induce Mr. Mohan to accept employment with them resulting in compensable losses to Mr. Mohan.”

The 2018 British Columbia Court of Appeal decision in Basyal v. Mac’s Convenience Stores Inc., [2018] B.C.J. No. 1086, BCCA 235 was an appeal of a certification order under the Class Proceedings Act. The case involved TFWs who alleged that Mac’s breached their contract and did not provide them with the work they were promised or “…in other cases any work at all…” (para. 1). The certification against the immigration companies was confirmed for breach of fiduciary duty. The plaintiffs were given the chance to make amendments to their pleadings for other aspects (paras. 77-80). In paragraph 80, Madam Justice Mary V. Newbury stated that “…As for the remaining causes of action, I would stay the action pending the plaintiffs’ amendment of the NOCC such that the material facts relating to each cause and to the existence of an agency relationship (if counsel chooses to pursue that allegation) are clearly stated…”

The journal article and report mentioned below delves deeper into the problems faced by migrant workers and provides further insights into how they can be supported.

A 2017 journal article, The Inaccessibility of Justice for Migrant Workers: A Capabilities-Based Perspective, by Bethany Hastie, an Assistant Professor at the Peter A. Allard School of Law, University of British Columbia, notes the various hardships that migrant workers face. It is noted that even though migrant workers face abuse and exploitation by employers, the number of legal cases is not high because of a lack of access to justice. A capabilities approach to justice, when addressing issues faced by migrant workers, is appropriate. The capabilities approach says that legal rights should not just be limited to what is written in the law itself, but one also has to examine whether the people who the law is meant to benefit are actually able to access it or not. The question is whether the people are able to access the laws to advocate for their rights (pages 21-22 and 24-25).

Migrant workers face numerous hardships and barriers in accessing justice and asserting their legal rights. Because of a lack of legal resources in their language, some may not know about their legal rights (pages 28-29). As noted on page 29:

“…the unfamiliarity or lack of knowledge about applicable laws and rights, where to seek assistance or advice, and even language barriers, can combine to create daunting obstacles for migrant workers who may desire to seek out information or help (referencing footnote 43)…”

The author of the article also notes, however, that access to knowledge about their legal rights is not the only barrier to accessing justice for migrant workers. There are deeper issues that prevent workers from enforcing their rights, such as fear that they may not be called back to their job. In some situations, despite knowing about their legal rights, they face an even bigger systemic issue. This is about barriers in the system which can lead to problems turning knowledge of legal rights into “valued functionings” (pages 29-30).

Migrant workers face a challenging situation, as their work permits under the Temporary Foreign Worker Program (TFWP) streams are tied to one specific employer. While in theory, they can change employers, this is actually quite difficult in reality (pages 31-32):

“…The employer-specific work permit thus creates significant dependence on an employer, and can prevent a migrant worker from freely circulating in the labour market (referencing footnote 52). This, in turn, produces a strong disincentive for migrant workers to assert their rights in the workplace, or in other words, creates a barrier to effective conversion of formal rights into substantive realization of just conditions of work in practice…”

A study participant noted on page 33:

“Well, I feel that the first barrier is the fact that the – the dilemma for the worker. This doesn’t look good. Should I endure it? To what extent? What happens if I seek help? While the employer is constantly saying, ‘Well, either you do this or you go back to where you came from.’ So the threat is – verbalized or not – it’s always on the horizon of the temporary foreign worker. He or she knows that they have to come back eventually, but every day they stay here, it’s a financial difference that has an impact on their lives and their families. So that even if they are not paid well, even if they are paid close to nothing, they still have the hope that eventually they are going to be paid. […] So the dilemma and at what point they reach the limit of their endurance, how much I’m going to support this, to endure this abuse […]”

In a complaints-drive system, a migrant worker has to spend lots of time and resources, which is not feasible for workers here on a temporary basis. Furthermore, the complainant also worries about his/her future and immigration status. The literature states that as “proactive investigations and monitoring” has decreased, so has “voluntary employer compliance” (pages 34-35).

Complainants also worry that coming forward with a complaint can identify them to the employer and put their current and future employment and income at risk (page 36).

The TFWP regulations and employer-specific work permit can become the root problem for many other issues. Many workers are hesitant to raise a voice because even though there are laws on paper, it is difficult to turn them into “…meaningful and just working conditions, and into realizable remedies or compensation for workplace rights violations…” The remedial options are quite limited as well. While workers could receive compensation for the abuse they have suffered, it is not likely that they will receive “longer-term employment and administrative security” (pages 36-37). At page 37, it is noted:

“For migrant workers who face rights violations in the workplace, this requires not only compensation, but considering how mechanisms for justice can address the underlying issues concerning security of employment, administrative status, and other important values underlying migrant workers’ experiences.”

It is important to provide information and resources about legal rights, but further work is needed to support migrant workers. There are many problems with the employer-specific work permit (pages 37-38):

“…Rather, an exploration of the employer-specific work permit establishes the deeper underlying issues that effectively disable migrant workers from substantively accessing the rights which they are entitled to in practice. This article has explored how the bonded nature of the work permit constrains migrant workers’ capabilities to access justice. The work permit system negatively impacts the ability for migrant workers to convert their legal rights into just conditions of work by creating a distinct and exacerbated power imbalance in the employment relationship. This, in turn, creates strong disincentives to assert rights or utilize vehicles for legal remedy when considered in light of the wider context in which migrant labour occurs, and the underlying motivations and needs of migrant workers participating under the TFWP. As a result, the legal system and access to justice for migrant workers who face abusive or unlawful treatment appear to be far too often out of reach.”

The author of the journal article also mentioned another important point in regards to the usage of terminology in her article (footnote 1 on page 20):

“This article will use the term ‘migrant worker’ to refer to participants under Canada’s Temporary Foreign Workers Program [TFWP], as opposed to the technical label of ‘temporary foreign worker’ which propels forward the ‘otherness’ of this population.”

I have also tried to minimize the use of this term in the blog post.

The Canadian Centre for Policy Alternatives report of August 30, 2018, titled, Building a Stronger Foundation of Basic Workplace Rights for BC Workers, suggests further measures that can be taken to help TFWs. In regards to farmworkers, the report states on pages 14 and 15:

“…In addition to the recommendations already made above for targeted proactive enforcement in the agricultural sector and reintroducing the entitlements to statutory holidays, annual vacation, hours of work and overtime pay for farmworkers, BC employment standards must be strengthened as follows:

23. Mandate that workplace rights are posted in the workplaces of all farmworkers in appropriate languages, including the native language of all migrant farmworkers employed under the Seasonal Agricultural Workers’ Program.

24. Establish an independent review of the ESA in relation to farmworkers, including representation from workers and their advocates. The review would make recommendations for improving the working conditions of farmworkers and develop coordinating mechanisms with other agencies that oversee migrant agricultural programs to fill the jurisdictional void that exists in enforcing the rights of migrant workers. It would include a review of the farm labour contracting system, notorious for its violations of employment standards, safety regulations and for shoddy recordkeeping practices, which make it virtually impossible for workers to seek redress when their rights are violated…”

It is also suggested that the complaint process rapidly address the issues faced by TFWs (page 16):

“…28. Expedite the investigation of complaints by temporary foreign workers to address potential reprisals and unjust dismissal that would force the worker to leave Canada before their complaint is handled…”

The introduction of the Temporary Foreign Worker Protection Act is a step in the right direction. Further efforts also need to be made at both the federal and provincial level to protect migrant workers, as noted above. We look forward to seeing how the Act is implemented and how it can address the many hardships that temporary foreign workers face.

If you are an employer or an employee seeking advice regarding your employment relationship, the Workplace Law Practice Group at Kane Shannon Weiler LLP would be pleased to speak with you. Please contact us at [email protected] or 604-746-4357.

By: Japreet Lehal

Proposed class-action lawsuit against Uber can proceed in Ontario

We are living in a time where the gig economy is becoming more prominent and popular. In British Columbia, food delivery apps are being used and many people are driving for these apps. Ride-hailing apps are expected to come to this province in the near future.

In this post, I will be focusing on quite a significant Ontario Court of Appeal decision, Heller v. Uber Technologies Inc.,2019 ONCA 1 (CanLII) [Heller]. This case was an appeal by Mr. David Heller, from a decision of the Ontario Superior Court of Justice, Heller v. Uber Technologies Inc.,2018 ONSC 718 (CanLII). Mr. Heller delivered food through the UberEATS app. This is a proposed class-action lawsuit against Uber. The ONSC decision was decided in the favour of Uber Technologies Inc. (“Uber”). In the Court of Appeal decision, Mr. Heller was successful.

In the proposed class-action lawsuit against Uber, the appellant wants to put forth the idea that Uber drivers should be considered employees pursuant to the Employment Standards Act,2000, S.O. 2000, c. 41 (the “ESA”), and that Uber has violated the ESA by not considering them employees. Furthermore, it sets out that the arbitration clause should be considered “void and unenforceable,” and the drivers are entitled to $400 million in damages (para. 4).

Mr. Heller entered into the Driver services agreement and the UberEATS services agreement. There was an arbitration clause in both agreements. This clause stated that the laws of the Netherlands are applicable to the Agreement (para. 11). Additionally, UberEATS drivers would be required to pay US$14,500 in the beginning, prior to the mediation-arbitration starting. These were called administrative/filing-related costs (para. 15).

It was decided that the arbitration clause is invalid because it contracted out of the ESA, which is not allowed (paras. 41 and 49). As noted in paragraph 41:

[41] Given my conclusion regarding the meaning of “employment standard”, it follows that the Arbitration Clause constitutes a contracting out of the ESA. It eliminates the right of the appellant (or any other driver) to make a complaint to the Ministry of Labour regarding the actions of Uber and their possible violation of the requirements of the ESA. In doing so, it deprives the appellant of the right to have an ESO investigate his complaint. This is of some importance for, among other reasons, if a complaint is made then the Ministry of Labour bears the burden of investigating the complaint. That burden does not fall on the appellant. Under the Arbitration Clause, of course, the appellant would bear the entire burden of proving his claim.

Even though the appellant did not go through the ESA complaint process route, the arbitration clause is invalid because it contracts out of this legislation, which is a violation of ESA Section 5(1). Under the ESA, the appellant has a right to begin a civil proceeding, instead of the complaint process. The appellant began the civil proceeding because this is a class proceeding. Under arbitration, there would be no class determination, and no public record. Even if the appellant was successful, it remains unknown what sort of remedy he would have received, because the laws of the Netherlands apply. If he is considered an employee, as an Ontario resident, he would be entitled to the minimum benefits under the ESA (paras. 42-46).

It was also decided that the arbitration clause is invalid on the basis of unconscionability (para. 52). In Ontario, a contract provision is considered unconscionable if the factors in Titus v. William F. Cooke Enterprises Inc., 2007 ONCA 573 (CanLII), 284 D.L.R. (4th) 734, at para. 38, recently affirmed in Phoenix Interactive Design Inc. v. Alterinvest II Fund L.P., 2018 ONCA 98 (CanLII), 420 D.L.R. (4th) 335 are met (cited at para. 60 of Heller):

1.   a grossly unfair and improvident transaction;

2.   a victim’s lack of independent legal advice or other suitable advice;

3.   an overwhelming imbalance in bargaining power caused by the victim’s ignorance of business, illiteracy, ignorance of the language of the bargain, blindness, deafness, illness, senility, or similar disability; and

4.   the other party’s knowingly taking advantage of this vulnerability.

These factors were applied in this case. The Clause was considered quite unfair because even for a small claim, the driver would have to pay lots of money to initiate the mediation-arbitration. Uber would be better suited to incur these costs, instead of the drivers. Moreover, there is the issue that the driver would have to engage in individual arbitration in the Netherlands, instead of where he/she is living (para. 68, at 1).

Mr. Heller did not receive any legal advice, and he could not negotiate the agreement terms with Uber either (Ibid, at 2). There is also bargaining inequality between Mr. Heller and Uber (Ibid, at 3). It was held that Uber inserted this Arbitration Clause in the agreements because it wanted to take advantage of the driver’s vulnerability, and did so knowingly and intentionally (Ibid, at 4).

It is noted in this case that the appellant and other individuals like him are similar to consumers, and Uber has greater bargaining power. At paragraph 71, it was stated that:

[71] I would add that, for the purposes of this analysis, I do not see any reasonable distinction to be drawn between consumers, on the one hand, and individuals such as the appellant, on the other. Indeed, I would note that, if Uber is correct and their drivers are not employees, then they are very much akin to consumers in terms of their relative bargaining position. Alternatively, if Uber is wrong, and their drivers are employees, we are not speaking of employees who are members of a large union with similar bargaining power and resources available to protect its members. Rather, the drivers are individuals who are at the mercy of the terms, conditions and rates of service set by Uber, just as are consumers. If they wish to avail themselves of Uber’s services, they have only one choice and that is to click “I agree” with the terms of the contractual relationship that are presented to them.

The Judge did not consider the arbitration clause valid from two different aspects. It was considered illegal under the ESA and Arbitration Act, 1991, S.O. 1991, c. 17. At paragraph 74, Nordheimer J.A. stated:

[74] I conclude that the Arbitration Clause amounts to an illegal contracting out of an employment standard, contrary to s. 5(1) of the ESA, if the drivers are found to be employees as alleged by the appellant. I reach the separate and independent conclusion that the Arbitration Clause is unconscionable at common law. On the basis of each finding, the Arbitration Clause is invalid under s. 7(2) of the Arbitration Act, 1991. The remedy of a mandatory stay has no application.

With the introduction of new technologies, it is important that issues relating to employment law are also taken into consideration. In British Columbia, with the popularity of food delivery apps and the imminent introduction of ride-hailing apps, such legal issues may arise in this province as well. Heller can be persuasive case law here too.

As Ottawa lawyer Paul Willetts notes, we can expect that Uber will seek a leave of appeal to the Supreme Court of Canada (final para., under “So, are Uber Drivers now Employees?”).

Uber is involved in lawsuits in other countries as well. In the UK, the Court of Appeal agreed with the Employment Appeal Tribunal that Uber’s drivers should be considered workers. If a driver is considered a worker, he/she then receives worker rights, such as the national minimum wage and paid holiday entitlement (paras. 2 and 3 of “Court of Appeal confirms that Uber drivers are workers”, by Katie Spearman). To read the full decision, please visit this link.

In France, Paris’ Court of Appeals decided that drivers had a “work contract” with Uber. They were not considered “independent workers” because they could not decide how much they were going to charge customers for the fare nor their working conditions. However, they are not yet considered employees because the driver’s complaint must first go to an employment matters court (paras. 1-2 and 4-5 of “French court: Uber and drivers tied by ‘work contract’”, by Laura Kayali).

The New York State Unemployment Insurance Appeal Board decided that to receive unemployment insurance benefits, Uber drivers can be considered employees, as opposed to independent contractors (NYS UIAB Appeal Decision for case 596725, online: <http://uiappeals.ny.gov/uiappeal-decisions/596722-appeal-decision.pdf>, cited in National Employment Law Project (NELP) link). Uber withdrew its appeal regarding this decision (NELP link).

In this blog post, I have not delved into the distinctions between employee, independent contractors, and dependent contractors. I have instead focused on the arbitration clause. These distinctions are another big topic that is related to the gig economy, and it is likely that in the coming years, there will be new legal developments in Canada in this area as well.  

If you are an employer or an employee seeking advice regarding your employment relationship, the Workplace Law Practice Group at Kane Shannon Weiler LLP would be pleased to speak with you. Please contact us at [email protected] or 604-746-4357.