Canada Emergency Response Benefit (CERB)

The Government of Canada has combined the previously announced Emergency Care Benefit and Emergency Support Benefit into the Canada Emergency Response Benefit (CERB). This taxable benefit provides $2,000 a month for up to four months for workers who lose their income as a result of the COVID-19 pandemic.

The following individuals will be eligible:

• workers who must stop working due to COVID19 and do not have access to paid leave or other income support.
• workers who are sick, quarantined, or taking care of someone who is sick with COVID-19.
• working parents who must stay home without pay to care for children that are sick or need additional care because of school and daycare closures.
• workers who still have their employment but are not being paid because there is currently not sufficient work and their employer has asked them not to come to work.
• wage earners and self-employed individuals, including contract workers, who would not otherwise be eligible for Employment Insurance.

The portal for accessing the CERB is anticipated to be open on April 6, 2020. The intention is that Canadians would begin to receive their CERB payments within 10 days of application. The CERB would be paid every four weeks and be available from March 15, 2020 until October 3, 2020.

For a list of individual supports available through the Canadian government click here The new Canada Emergency Response Benefit

Employment and Corporate Response Strategies

We know many of our employer clients are facing difficult choices in the face of the Covid-19 crisis. We appreciate that this is a challenging time for many and are reaching out to let you know that we are operating and available to provide guidance through this unprecedented situation. It is a challenging time to be balancing operational needs, cash flow restrictions and employee wellbeing. In what seems to be an ever-evolving landscape our team is closely monitoring developments and staying up to date on government direction, legislative changes and employer obligations.

Employment Decisions

In addition to grappling with the decision of whether to close your business, employers need to assess how best to handle the likely event of staff reduction due to sickness and financial strain. Many employers would be well served to consider temporary layoffs or cyclical layoffs under the Employment Standards Code before immediately resorting to terminations. The Employment Standards Code contemplates temporary lay offs of employees for up to 60 days within a 120-day period. If your contracts of employment permit temporary layoffs you are able to rely on these provisions to execute temporary layoffs in accordance with sections 62 to 64 of the Employment Standards Code. If your contracts do not include this provision, you risk your employees refusing the temporary layoff and commencing a claim for constructive dismissal. There are practicalities to the viability and financial realities to these claims in a pandemic environment, particularly if your employees are recalled. Please contact us to discuss your potential exposure to these claims before implementing a temporary layoff. If temporary layoffs are successfully conducted this allows the employer more time to assess the impact on cash flow and assess operational needs. In addition, cyclical layoffs (when portions of your workforce are laid off in cycles) assist employers in preparing for the possibility that a percentage of the active workforce becomes ill and unable to work in a way terminations do not.

If layoffs extend past 60 days in a 120 day period, the employees are deemed terminated and termination obligations, contractual, common law, and/or Employment Standards Code related will flow. It will be imperative to assess these potential obligations prior to the lapse of 60 days the potential associated liability may exceed statutory minimums.

Another possibility is instituting wage or hour rollbacks. While rollbacks may constitute a unilateral fundamental change to employment sufficient to support a constructive dismissal claim there are strategies and practicalities that may mitigate that associated risk. These includes limiting the size of the rollback, making the rollback temporary in nature, negotiating the change with employees in advance of implantation and applying the rollbacks as equally as possible in the circumstances. We are happy to work with you to formulate a plan best suited to your organizations’ needs.

In all of these scenarios, effective and open communication between the employer and the employee is a key factor to success. We suggest fostering a team approach, explaining the necessity for the reductions, applying the reductions as equitably as possible (and communicating that to the employees), and maintaining an honest and direct dialogue. We are happy to assist with your communication strategy to ensure these objectives are met.

Advising Employees About Decisions

There are a number of leaves and Employment Insurance resources available to employees during this time. We suggest during times where difficult decisions will be made, impacting employees and their families, that employers provide the affected employees with as much information and as many resources as they are able to. So far, in addition to the Employment Insurance resources normally available, the Government of Canada has responded by:

• Waiving the one-week waiting period for those individuals in imposed quarantine that claim Employment Insurance (EI) sickness benefits – effective March 15, 2020.
• Waiving the requirement to provide a medical certificate to access EI sickness benefits.
• Introducing the Emergency Care Benefit providing up to $900 bi-weekly, for up to 15 weeks. This flat-payment Benefit would be administered through the Canada Revenue Agency (CRA) and provide income support to eligible:
• Workers, including the self-employed, who are quarantined or sick with COVID-19 but do not qualify for EI sickness benefits.
• Workers, including the self-employed, who are taking care of a family member who is sick with COVID-19, such as an elderly parent, but do not quality for EI sickness benefits.
• Parents with children who require care or supervision due to school closures, and are unable to earn employment income, irrespective of whether they qualify for EI or not.

Navigating Corporate Agreements and Contractual Terms

Given the unprecedented shut down in economic activity, you may be experiencing significant cash flow limitations. Our corporate lawyers can assist you with responding to lender demands, negotiating vendor or supplier contracts or engaging with landlords regarding your existing lease terms. They are also available to discuss potential government financing programs as well as any concerns that you might have about the duties of directors in this situation.

What Duncan Craig can do to help

All lawyers and legal staff have the ability to work remotely with key staff continuing to work in the office to meet operational needs. We are available to:

• Assist in the creation and implementation of your workplace Covid-19 plan;
• To advise on best options for addressing cash flow issue, including temporary layoffs;
• To review and assess potential termination obligations;
• To provide information on the leaves and resources available to your employees during a time of layoff or job loss; and
• To answer questions on how to navigate illness, quarantine, and Covid-19 exposure issues.

Video Mediation and Arbitration

We understand the importance to our clients of resolving conflicts in innovative ways in this difficult and challenging time. Online mediations and arbitrations are an effective means of advancing disputes in the face of court closures, physical distancing and self-isolation.
We are able and willing to use video technology to facilitate mediations and arbitrations during the COVID 19 pandemic.

Estate Planning in Times of Uncertainty

So much is out of our hands right now, but we can seek comfort in focussing on what we can control. Reviewing and updating our estate plan can give us some much needed peace of mind.

Here are a few points to consider in reviewing estate plans:

• Does your will reflect your current wishes?
• Are your children older now, and perhaps able to step in to act as executors?
• Are the age restrictions you placed on when your children would receive their inheritance still appropriate? Or should it be held in trust for a longer or shorter period of time?
• Is your executor getting older or has he or she moved away?
• Have you included grandchildren and maybe even great grandchildren?
• If you have given specific gifts, do these still reflect your wishes, and are they proportionate according to your whole estate?
• Have you given financial help to one of your children out of proportion to the others? Was it a gift or do you want it taken out of their inheritance?
• Do you have an enduring power of attorney- to appoint someone to look after your finances if you lose your capacity? Is it up to date?
• Do you a personal directive- to appoint someone to make health care decisions for you if you cannot speak for yourself? Does it reflect your current wishes?
• Have you left ‘bread crumbs’ for loved ones to follow so they know where to look for important information? Ideally, skype or phone loved ones to let them know where to look. They don’t need to know exact details, but they need to know where to start looking.

If you are helping elderly loved ones, you can help them – and you- have greater peace of mind by ensuring they have reviewed their estate plan as well.

Of specific note is the Enduring Power of Attorney. Most Albertans choose to indicate that the person we appoint as our Attorney (to handle our finances) only steps in if we lose our capacity. The document typically defines loss of capacity as occurring once one or two doctors confirm it in writing. Given the anticipated strain on medical practitioners, if we are elderly and we have someone in whom we have the utmost confidence and trust, we may choose to update the power of attorney now so that it is immediate. This means the trusted person could, if necessary, step in right away, to handle our finances, without having to obtain medical confirmation of our incapacity.

Our Estates Solutions team has developed special protocols for helping clients during COVID 19. We are working remotely and happy to speak with you at any time by phone or email, and can take instructions by phone or email. When it comes time to sign your will etc, we will make customized arrangements to meet, using enhanced protocols.

We remain optimistic that Canada and the world will work together to emerge from this storm stronger and more united. In the meantime, stay safe and healthy, and enjoy many virtual coffees with friends and loved ones!

Canada Emergency Wage Subsidy

The Government of Canada released further details on the Canada Emergency Wage Subsidy through the Minister of Finance today. While full details on the application process are not yet available, what we know right now is:

• The Government of Canada will cover 75 per cent of the first $58,700 normally earned by employees, up to $847 per week.
• The program will be in place for a 12-week period retroactively starting on March 15, 2020, running to June 6, 2020.
• To be eligible employers must demonstrate a decrease in gross revenues of at least 30 per cent in March, April or May, when compared to the same month in 2019.
• Employers of all sizes and across all sectors of the economy are eligible (excepting public sector entities).
• There may be different parameters for determining revenue for non-profit organizations and registered charities.
• An eligible employer’s entitlement to this wage subsidy will be based entirely on the salary or wages actually paid to employees.
• Companies will be required to show the pre-pandemic income of an employee and show that the employer has paid the employee up to $847. The employer will then get that money returned to them by the federal government. The program is not a reduction in remittances as was the initial wage subsidy program of 10%.
• All employers are expected to make best efforts to top up salaries to 100% of the maximum wages covered.
• Employees receiving the Canada Emergency Response Benefit are not eligible for the Canada Emergency Wage Subsidy. It is one or the other.
• The government is hoping that employers can get themselves on a direct deposit system with the CRA to make the flow of funds faster.

Further details on the application process and portal launch are forthcoming, however, it is not expected that any funds will be released in accordance with this initiative for at least another 6 weeks.

Employment Standards Code Temporary Changes

The Alberta Government through the Minster of Labour announced on April 6, 2020 a series of temporary amendments to the Employment Standards Code ("Code") and Regulation. These temporary changes are now in place to help employers and employees navigate the ever-changing environment caused by Covid-19. Unless the Order is extended, the current changes remain in place until the earlier of a) the Order being terminated by the Minister or Lieutenant Governor in Council, b) 60 days after the Order declaring a state of public health emergency in Alberta is terminated if termination occurs before June 15, 2020, or c) August 14, 2020. They are as follows:

• The maximum allowable days for a temporary layoff under the Code has been increased from 60 days to 120 days. Previously, employees on temporary layoff would be deemed terminated if not recalled to work within 60 days. This extension will allow employers more time to stabilize without triggering terminations and associated obligations and it leaves employees job-attached for a longer period of time.
  • This change applies retroactive for temporary layoffs related to COVID-19 that occurred on or after March 17.
• A job-protected leave has been created for employees caring for 1) children affected by school and daycare closures or 2) ill or self-isolated family members due to COVID-19
  • The 90-day employment requirement is waived.
  • The leave length is flexible and linked to guidance from the Chief Medical Officer.
  • A medical note is not required.
  • Regular personal and family responsibility leave rules continue to apply for all other circumstances.
• The 24-hour written notice requirement for shift changes has been removed.
• The requirement for 2 weeks notice for changes to work schedules for employees operating under an averaging agreement has been removed.
• The Group Termination provision timelines are suspended. Previously, employers were required to provide the Minister of Labour and Immigration with 8 to 16 weeks notice of terminations of more than 50 employees at a single location to occur within 4 weeks. These timelines are unrealistic in current circumstances.
  • Individual termination entitlements continue to remain in effect.
  • Employers must still give group termination notices to the Minister of Labour and Immigration as soon as is practical.
• The approval process for modifying employment standards (variances and exemptions) related to Covid-19 has been streamlined. Variances are issued for individual workplaces and allow for modifications to certain employment standards when need can be demonstrated. During the uncertain times created by Covid-19 it will be easier for employers to obtain relaxation of certain standards on a case by case basis if required.

These changes appear to coincide with the difficulties employees have been facing regarding child care needs, and employers have been facing regarding scheduling and rapid workforce reduction needs.

Business as Usual? Contracts during the COVID-19 Pandemic

The emergence of the novel COVID-19 virus has led to devastating impacts around the globe, and if health experts and world leaders are correct, the full impact of COVID-19 has not yet been felt. Since the World Health Organization declared the outbreak of the COVID-19 virus a pandemic, many countries have imposed numerous restrictions and declared “Public Health Emergencies”.

With news changing rapidly by the day, and even by the hour, the COVID-19 pandemic has created significant commercial uncertainty with few able to predict the length and effects of the pandemic. The global COVID-19 pandemic is leaving many business owners wondering what they should do if they are unable to preform their contractual obligations due to the chain of events set in motion by the COVID-19 pandemic.

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Need Family Law Advice? How We Can Help During Covid19

Duncan Craig’s Family Solutions Group has a long standing and proud history of helping clients navigate the most significant crisis in their lives: the breakdown of a relationship. The realities of relationship breakdowns do not pause for the pandemic. That is why we continue to offer our services to those who require them now more than ever.

Legal services have been classified as "essential services" during the Covid-19 pandemic and this includes Alternative Dispute Resolution (ADR) services, too. Family Solutions Group lawyers are here to assist families in whatever way possible. While much of family law work requires in person contact, we have developed ways to mitigate those hurdles to ensure a file continues to begin or move along during this unprecedented time.

The courts are currently closed to regular chambers applications. However, if a matter constitutes an emergency, an opportunity to seek a decision from the court may still be available. At this time, an emergency is defined by the court on a case by case basis, and issues such as access to one’s child, child abduction, abuse of a child or partner/spouse constitute an emergency. Further, applications with respect to property dissipation are also within that limited definition. Arbitrators are stepping up to provide the option of their services to grant decisions on what would have been a family chambers application previously for matters that may not be considered emergencies. The Court of Queen’s Bench is currently working on establishing remote options for regular chambers applications, and once this becomes available, clients will have the opportunity to move their matters forward virtually.

If a client’s circumstances are such that a court decision is not required, we can organize ways to continue to help. Options such as mediation, collaborative family law and arbitration are available to be utilized and are often more cost effective and time efficient ways to approach family law issues. Settlement meetings via video conference is a viable way to approach your family matter as well.

The Family Solutions Group of lawyers can also meet with existing and new clients utilizing video technology to provide sound legal advice, legal strategies and legal opinions; file pleadings; draft cohabitation, pre-nuptial or post-nuptial agreements; act as mediator in family law disputes or negotiations; proceed through the Collaborative Family Law process; gather and review financial disclosure; draft, swear and sign affidavit evidence; negotiate on your behalf with other counsel or the other party; prepare and conduct questionings; retain experts; commission reports; and, prepare for trials.

When the courts re-open there will be a significant backlog of clients searching for family law lawyers to assist them with their concerns. We encourage anyone in need of a family lawyer to get in touch with our Family Solutions Group and set up a telephone or video consultation.

What are the Options for Consumers who are Unable to Pay Debts?

If you are considering taking money from your RRSP to make credit card Payments...STOP and read this first

The COVID-19 pandemic has caused hundreds of thousands of people to lose their jobs in Alberta. Many others have seen a decrease in their monthly income. For everyone affected financially by this crisis, paying the monthly bills is increasingly hard, or simply impossible to manage.

If you find yourself in this unfortunate situation, you may be tempted to withdraw funds from your RRSP in order to maintain your minimum payments to credit card companies and/or other unsecured creditors. Before you do, there are important consumer protection laws and debt repayment options that you should consider.

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Forbearance Agreements: A Refuge for Creditors and Lenders During the Pandemic

Many businesses in Alberta had been facing difficult financial circumstances prior to the onset of the COVID-19 pandemic. Over the past few weeks, the business environment has deteriorated, and remains uncertain at best. All aspects of business, including operational expenses, completion of contracts, cash flow requirements and business/asset valuations are likely affected. As a result, the ability of many to make required payments, meet margin or other financial covenants, and satisfy other contractual obligations has likely been compromised to some degree. Creditors’ businesses are being equally affected

Where a customer or debtor has defaulted under a contract, it may be in the best interests of all parties to work together and come to some form of understanding that manages the situation, at least in the short term, A “Forbearance Agreement” is one possible, and commonly utilized, option.

A Forbearance Agreement is an agreement between the creditor and debtor. In reaching an agreement, the debtor’s default is acknowledged, and the creditor agrees to not commence, or not to continue with, enforcement or recovery steps against the debtor for a certain period of time and upon certain terms and conditions.

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Parenting During Covid-19. What are the Rules?

If it isn’t difficult enough to get along with one’s ex during non-pandemic times, attempts to do so during pandemic times can be riddled with challenges. Most calls to family lawyers at this time concern whether parents must follow existing parenting arrangements during the quarantine restrictions. Until recently Alberta did not have a decision from the Courts on this issue, but Justice Graesser’s decision of April 24th , SAS v. LMS, 2020 ABQB 287, delineates the rules regarding parenting disputes during Covid19.

The take-away from this important decision is that the Court has confirmed that all parenting orders must be followed during Covid19. The Court has emphasized that Covid19 is not an automatic change in circumstance to warrant a variation of an existing order. Failures to follow an existing Court Order will not be given leniency by the Court, absent an application to vary the Order. Any application to vary an existing order will be viewed strictly through the lens of urgency for the health and safety of the children and it must firstly pass the test of whether or not it should be heard as an emergency application. If a parent intends to pursue an emergency application during Covid19, there must be clear proof before the Court that the proposed change in parenting is necessary for the safety of the children. Arguments based on speculation, mistrust or fear of what the other parent might do will not be persuasive to the Court. This means that if a parent thinks the other parent is not following the Alberta Public Health recommendations, they must be able to show the Court actual proof of this in order to limit their parenting time and, the Court wants parents who believe this is happening to first endeavour to encourage the other parent to follow protocols rather than come to Court.

Where it is reasonable for a Court to restrict a parent from seeing their children due to their specific risks in the circumstances at this time, the Court has also emphasized that, the current pandemic is temporary and will end. The Court has expressed empathy with parents who may not be able to have their children with them, recognizing this can be devastating, , but this too is temporary. Justice Graesser encouraged parents to utilize any and all technology available to them to facilitate contact between the access parent and the children, and stated that “missing a few access visits, or even a few months of face to face visits is unlikely to have a major long term impact on the child’s relationship with the parent who is only able to communicate electronically over this period” [para 43]. Justice Graesser went further to confirm that making up missed parenting time is not an emergency and should be discussed between parents before any application is made once the pandemic ends. Justice Graesser set out the specific criteria a Court is to consider for applications which pass the hurdle to be deemed an emergency application. The following is a summary of the Court’s conclusions:

1. Parents are expected to address COVID-19 issues and concerns with each other before taking any action (including applying for variations or relief from the Court) to resolve these issues and concerns in good faith and to act reasonably in exploring strategies that will first and foremost ensure the health and safety of their children.
2. Where face to face access or parenting time presents different risks in the different households, the parties should consider strategies that have the children in the less risky environment but in a manner that maximizes virtual contact between the children and the other parent.
3. Court orders are meant to be followed. There should be no unilateral withholding of access or parenting time except in true emergency situations as described above where there is imminent risk to a child’s health or safety.
4. Whether under the Divorce Act or the Family Law Act, varying existing court orders requires a change in circumstances and will be determined on the basis of the best interests of the child or children. COVID-19 is not an automatic change in circumstances; the party seeking a variation must establish that their family circumstances have been impacted in a way that warrants a temporary change in the order.
5. The burden or onus of proof is on the parent seeking a change in the status quo or the existing court-ordered parenting. It is not satisfied by suspicion or speculation, but as with any matter involving circumstantial evidence, it may be satisfied by logical and reasonable inferences from conduct.
6. If an application cannot be made because of the urgency of the situation, an application must be made as soon as possible after learning of the emergency.
7. Applications based on speculation, mistrust, or fear without credible evidence of material non-compliance posing unacceptable risks to the children are unlikely to get permission to proceed as an emergency application, let alone be successful.
8. Respondents must be prepared to unequivocally commit that he or she will meticulously comply with all COVID-19 safety measures.
9. Non-compliant parents can expect no second chances.

Therefore, if there is an existing parenting order, parties should consider the Court’s approach to ignoring existing Order or variation applications of those Orders before applying to the Court. If there is no parenting order to rely upon, these above points still apply to the status quo, and the Court will expect that the parties will have done their best to follow their pre-pandemic existing regime. While it is difficult and challenging, it can be helpful to keep the interests of children and their need for contact with both parents, balanced by realistic assessments of what is necessary for their health and safety at the forefront to ensure both parents are facing in the same direction during this unprecedented time.