reopening ontario: an update on emergency powers ... · toronto windsor-essex york region* what’s...

Reopening Ontario: An Update on Emergency

Powers & Extraordinary Measures

Daniel Sheppard

Goldblatt Partners LLP

June 17, 2020© GOLDBLATT PARTNERS 1

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Where we’ve been and where we’re going…

Last Goldblatt Partners LLP presentation on

emergency measures was on April 6th, when:

▪ The state of emergency was to expire on April 14th

▪ The government had issued 25 emergency orders

▪ Only 44 types of businesses were permitted to

operate

▪ “Designated infectious disease leave” was designed

to protect workers



Since then:

▪ The state of emergency has been renewed three times, now set to end June 30th

▪ The number of emergency orders has increased from 25 to 95

▪ Rules for what businesses can operate have become increasingly complex

▪ “Designated infectious disease leave” is now a tool to deny termination & severance pay


Agenda

Review of Basic Principles

New Approaches to Businesses & Public Gatherings

Orders Impacting Collective Agreements

Other Notable Emergency Order Changes

The re-vamped Infectious Disease Emergency Leave

Q&A


Emergency Measures and Civil Protection Act

▪ Cabinet has the power to declare an emergency

▪ Emergency must be periodically renewed by the

Legislature or else it lapses

▪ During an emergency Cabinet and the Premier get

special powers, including power to make emergency

orders that prevail over existing laws (but not the

Charter of Rights and Freedoms or the OHSA)

▪ Orders also expire, but can be renewed by Cabinet



90+ orders have been issued in 6 main categories:

1. Regulating workplaces, public spaces & groups

2. Impacting operation of workplaces & CA’s

3. Price control & economic measures

4. Permitting sharing of health information

5. Relieving against certain legislation/timelines

6. “Other”/miscellaneous orders



Most orders are currently set to expire on June 19,

2020, but can be renewed by Cabinet

5 orders have expired or been revoked thus far


Agenda


New Approaches to Business & Public Gatherings




Q&A



Three eras in Ontario’s approach to regulating

businesses and public gatherings:

▪ Mid-March – Mid/Late April: Increasingly strict

restrictions.

▪ Early May – Mid-June: Progressive easing

▪ Mid-June onwards: Regional variations


Easing of Rules for Public Gatherings

▪ Number of people allowed in gatherings increased

from 5 to 10

▪ Additional flexibility for religious events, funerals,

weddings, and certain events in Stage 2 jurisdictions

▪ Some park amenities, like benches, can be used,

but social distancing required

▪ Municipalities continue to have concurrent rules


Easing (but Complicated) Rules for Businesses

As of June 12, two distinct sets of rules for

business operations

Significant differences between the two regimes


Regional Rules (As of June 12, 2020)


Health Units in Stage 1:

▪ Durham*

▪ Haldimand-Norfolk*

▪ Halton*

▪ Hamilton*

▪ Lambton*

▪ Niagara Region*

▪ Peel

▪ Toronto

▪ Windsor-Essex

▪ York Region*

What’s so great about being in Stage 2?

Personal care services, including barbers, spas, and tattoo parlors

Personal services, including wedding planning, shoe repair, personal shopping

Parks for RV camping

Outdoor team sport training

Drive-in/through venues

Limited library and community centreservices

Museums, galleries, zoos, aquariums

Outdoor seating for Restaurants & Bars Shopping malls

Photography studios

All film & TV production

Tour & guide services

Water recreational facilities, including public pools, condo/hotel pools

Outdoor recreational facilities, including paintball, mini golf, archery, go cart tracks


All of these locations are subject to their own sets of rules

Agenda






Q&A


Interfering with Collective Agreements

Eighteen orders authorize interfering with the

provisions of a collective agreement

Most are “sectoral”, applying to particular kinds of

employers

Smaller number target specific issues that may

arise across different kinds of workplaces


Impacted Sectors

• Hospitals & health service providers• Long-term care homes• Water & Sewage system operators• Traffic management services• Boards of Health• Retirement Homes• Service agencies for developmentally

disabled adults• Police services• Residential and crisis line services

agencies for victims of violence against women

• District social service administration boards

• Community service providers• Municipalities• Mental health and addiction

agencies• Intervener sector for persons who

are deafblind• Education sector• Workers in receipt of temporary

pandemic pay


New Impacts on Labour Rights

Congregate care settings (long-term care homes &

retirement homes) and hospitals are subject to

special orders

Permits movement of staff between employers

without labour relations consequences, like related

employer


New Impacts on Labour Rights

Other types of orders impacting collective

agreements:

▪ Pandemic pay may be provided without

negotiation with unions

▪ Education workers can volunteer for deployment

to other settings outside of collective agreement

framework (with risks)


Agenda






Q&A



▪ Broad powers to order take-over of long-term

care and retirement homes by government &

appointment of new management

▪ Withdraw or elimination of electricity price

reduction orders

▪ Expanded access to childcare, but loss of

protections related to withdrawal and fees


Agenda






Q&A



Mid-March Ontario creates “Infectious Disease

Emergency Leave” (IDEL)

Applies retroactively to January, giving workers a

job-protected leave from work for 6 COVID-related

reasons

Protects those who need to care for family, under

quarantine, self-isolating, or stuck out of Canada



On May 29th, Ontario changed the IDEL rules and

made associated changes to the ESA termination

and severance rules

Effect of these changes was to make it easier to

deny workers termination & severance pay

Also will deprive some workers of access to

employer-paid benefits


“Deemed” IDEL

For non-unionized workers whose hours of work

are temporarily reduced or eliminated by

employers for reasons related to COVID-19, they

are now on a “deemed” IDEL

Previously, these workers would have been viewed

as being laid off and/or constructively dismissed


“Deemed” IDEL

Workers on “deemed” IDEL may have fewer rights

than workers on other leaves

Usually, when on leave an employer is required to

pay benefit premiums for employees

If an employer was not paying such benefits as of

May 29th, they are not required to start for those

workers deemed to be on IDEL


Termination & Severance

Rules also exclude ESA rules on deemed termination & constructive dismissal to workers impacted by COVID-19

Normally, a worker would be entitled to termination and severance pay under the ESA if they were:

▪ Constructively dismissed (e.g. significant wage reduction); or

▪ Laid off beyond maximum allowed (usually 13 weeks)


Termination & Severance

Under new rules, reduction of hours/wages does

not count as constructive dismissal or count

against lay-off “clock”

Only exception is a constructive dismissal or

deemed termination occurring prior to May 29th, or

where employer permanently shuts down business


Agenda






Q&A


How Q&A Will Work Today


Ask questions by typing them into the Q&A box

You can pull this up by clicking on the Q&A button

at the bottom of your screen:

Only you and the presenters will see your question

reopening ontario: an update on emergency powers ... · toronto windsor-essex york region* what’s...

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