Canadian Lawyer

July/August 2020

The most widely read magazine for Canadian lawyers

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COVID-19 LABOUR STANDARDS ACT EXCEPTIONS British Columbia If a business closure or staffing reduction is directly related to COVID, employers may be exempt from providing compensation for length of service or termination pay. New Brunswick COVID-19 counts as an exemption to the requirement that employers provide employees with notice for termination or pay in lieu. Ontario Termination pay is not required if the employee has lost employment because the employment contract is impossible to perform or has been frustrated by an unexpected or unforeseen event — such as a fire or flood — which makes it impossible for the employer to keep the employee in service. says Levitt. "They're going to be looking for more aggres- sive counsel. They're going to be looking to take tougher positions with their cases. They are going to be looking to set precedents. They're not going to be settling cases quickly and expensively anymore. "So that's going to be a major change post-COVID." Because of the layoffs and wage and hour reductions, the lawyers who spoke with Canadian Lawyer expect much of COVID's litigation wave will be in the form of constructive dismissal claims. If an employer unilater- ally changes the employment relationship in a way that is fundamental to the employment agreement, the employee can argue that the employer has effectively terminated that agreement. Lisa Cabel is national leader, employment and labour law, at KPMG Law LLP. Since the pandemic erupted, she's been counselling clients on what changes could trigger constructive dismissal and how to mitigate against that. "I do think that a lot of the types of initiatives employers are really forced into putting in place right now carry with them the risk of constructive dismissal," says Cabel. "Many employers are just sort of moving ahead with it, under- standing that risk exists. "There will be litigation coming out of this, in terms of individuals — and I have seen this — not agreeing to those changes." So far, Stikeman Elliott LLP partner Gary Clarke is not seeing many constructive dismissal claims, which he attributes to the fact that employees are sticking by their At Sherrard Kuzz LLP we collaborate with our clients to anticipate and avoid human resources problems. We know proactive steps today will prevent Murphy's Law tomorrow. From human rights to health and safety, and everything in between… If you're an employer, we're the only call you need to make. | 416.603.0700 250 Yonge St #3300, Toronto, ON M5B 2L7 @sherrardkuzz 24 HOUR 416.420.0738

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