Chad Blundy

June 9, 2020

Estate Administration

Power of Attorney General Overview - Continued

Chad Blundy

June 9, 2020

Estate Administration

Author: Warren Gilmore - Law Student
Edited By: Ryan Carson

Power of Attorney for Property

This specific type of Power of Attorney works to provide your appointed attorney with the power to conduct your financial affairs. This includes your interests in both real and personal property in the event that you become mentally incapable, and unable to conduct these affairs yourself.

The reach of this document can be as expansive as you wish, but typically they are constructed to provide your designated attorneys with the necessary authority to manage your financial affairs. Such as, paying bills, managing your investment portfolio, or the buying and selling of property.

A particular level of mental capacity is required in order to create a legally enforceable Power of Attorney for Property.

First, you are required to know what property you currently hold, as well as its estimated value.
Second, you must understand your responsibilities to your financial dependents.
Third, you must be aware of what specific authority you are delegating to your appointed individuals.
Fourth, you must understand that your attorney is obligated to account for all decisions made in regards to your property.
Fifth, you must understand that you have the right to revoke your power of attorney at any time, so long as you are mentally capable.
Sixth, you must understand the potential consequences that could result due to mismanagement of your property at the hands of your attorney.
Last, you must understand the unfortunate possibility that your attorney may abuse their authority.

Power of Attorney for Personal Care

Conversely, A Power of Attorney for Personal Care involves the designation of authority to make decisions surrounding medical treatment, health care, safety, food, and other matters of a similarly intimate nature. This document allows you to outline in advance what your future care will look like by placing the power to make these important decisions in the hands of someone you trust to carry out matters in your best interest. This document provides you and your loved ones with the peace of mind that your personal interests will be looked after should you no longer be able to adhere to them yourself.

A particular level of mental capacity is required in order to create a legally enforceable Power of Attorney for Personal Care.

First, you must be able understand whether or not the individual you have appointed to be your attorney truly has your best interest at heart.
Second, you must understand that your appointed attorney may very well be required to make important decisions of your behalf.

A Power of Attorney for Personal Care can only be acted upon in the event that you become mentally incapable of making decisions on your own. Typically, it is left up to the judgement of your appointed attorney to determine whether or not you are mentally capable. However, if an impending decision is one involving medical or long-term care, it is up to a medical professional to determine whether or not you are mentally capable of making such a decision before your attorney will be legally permitted to act.

At Carson Law we are dedicated to helping our clients put together the appropriate set of Power of Attorney documents tailored to fit your unique set of needs.

To read Warren’s corresponding article on Power of Attorney General Overview, click here.

Disclaimer

The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

Chad Blundy

June 5, 2020

Power of Attorney General Overview

Chad Blundy

June 5, 2020

Author: Warren Gilmore - Law Student
Edited By: Ryan Carson

An overwhelming majority of Ontario adults currently go about their daily lives without the security of having a properly drafted will and a power of attorney in place. It is important to address these matters regardless of one’s age in order to avoid the pitfalls of probate, and to provide yourself and your loved ones with peace of mind through proper estate planning.

Powers of Attorney Generally

While Ontario law does not refer to the term “living will”, a properly executed Power of Attorney works to fill this void in the province. Powers of Attorney, unlike your last will and testament, maintain a legal effect only while you are living. A Power of Attorney is a legally binding document which requires one to appoint a specific individual or individuals, to make important decisions on your behalf. The document provides these appointed individuals with the legal authority needed to carry out important decisions. The types of decisions made pursuant to these documents depend on the nature of the specific type of Power Attorney drafted. Power of Attorney documents typically involve “Power of Attorney for Property”, and “Power of Attorney for Personal Care”.
While a Power of Attorney is not mandated by law in Ontario, the protection it offers, the peace of mind it provides, and its relatively low cost of creation, make it a foundational component of estate planning. One that we recommend to all of our clients, regardless of the particular stage of life they currently find themselves in.

In Ontario, the government does not maintain an official registry for these documents. Therefore, it is best practice to ensure that the location of these legal documents is known to the people who will be required to act upon them. We recommend, of course maintaining a copy for your own records, but also leaving copies with your lawyer, and any individuals who may have legal responsibilities pursuant to the document itself.

Without a Power of Attorney, should you become unable to make decision on your own behalf, another individual must petition a court in order to obtain legal authority to represent your affairs. Failing this, a court will appoint a guardian to represent your interests. In order to avoid this situation, it is important to have a legally enforceable Power of Attorney in place.

When appointing an individual as your attorney, any one over the age of 18 for property, and over the age of 16 for personal care, can legally assume this role. It is important to choose an individual who is responsible and trust worthy, as assuming the role of an appointed attorney requires a great degree of consideration and integrity. Best practice is to consult your lawyer when making this decision.

In the instance you wish to appoint more than one individual as your attorney, proper drafting is required to outline how decisions are to be made amongst these appointed individuals. If you elect for your attorneys to be required to act “jointly”, both individuals must make decisions together, one cannot act without the consent of the other. Conversely, if you elect for your attorneys to be required to act “jointly and severally”, one individual can make decisions either collectively or individually. Whichever variation you prefer, it is important to have this reflected clearly in the document in order to avoid contention or confusion down the road.

Your Power of Attorney, should you wish, can be revoked any time after its execution so long as you remain mentally capable. Otherwise, your Power of Attorney ends naturally upon your death, or the death of your appointed attorney.

It is important to consult with an experienced lawyer when drafting your Power of Attorney to ensure that your wishes are sufficiently documented and legally enforceable. At Carson Law we are dedicated to providing our clients with the highest level of professionalism in all aspects of our practice.

Disclaimer

Chad Blundy

June 3, 2020

Estate Administration

Estate Planning: A How To Guide

Chad Blundy

June 3, 2020

Estate Administration

Author: Stacey Staios - Articling Student
Edited By: Ryan Carson

Developing an estate plan can be difficult, as it requires you to plan for life after you have passed away. However, dying without such a plan may cause confusion and complications. Creating an estate plan is important if you want to have your property divided and distributed according to your wishes and there are a number of steps that you can take to ensure this.

Will

The first and arguably most important step in estate planning is to make a will. A will is a document that takes effect after you pass away and can include ‘things’ such as the distribution of your assets, custody of minor children and burial/funeral instructions.

If you die without a will, the law deems that you have died intestate, meaning you have not left any instructions as to how you wish your property ‘is’ to be divided and distributed. Without a will, the Ontario Succession Law Reform Act will determine who your beneficiaries are and how your property will be divided, resulting in a potential loss of control.

Specifically, having a will is important for unmarried couples or couples who have remarried. Unmarried cohabiting couples are not afforded the same rights as married couples in regards to division of property. Therefore, if one unmarried party in a common law relationship wishes to leave property to the surviving spouse, it is best to include this in a will.

Also included in a will can be a chosen executor. This individual will be responsible for settling your estate after death. Executor duties include but are not limited to, arranging a funeral, securing and appraising the assets of the deceased, paying any debts or taxes of the deceased and distributing the assets according to the will. In addition to appointing a primary executor, you may choose an alternative executor who will assume responsibility in the event the primary executor passes away or becomes ill and cannot fulfil executor duties.

  
    Power of Attorney

A power of attorney may be the next document to complete in your estate planning. A power of attorney is a document in which you give someone the right to make decisions for you in the event something were to happen and you are not able to look after on your own.1 

There are two types of Power of Attorney: Power of Attorney for Personal Care and Power of Attorney for Property. The former is someone who will be named to make decisions about your health, housing, and other personal aspects in the event you become mentally incapable of making these decisions. 

In contrast, a Power of Attorney for Property will be someone who you choose to make decisions about your financial affairs.2  Every individual has the freedom to choose a Power of Attorney, but it must be made free from any undue influence by the attorney or third party. 

You are free to choose more than one Power of Attorney, but when two or more attorneys are chosen, they must agree on a decision unless your Power of Attorney says they can make decisions jointly and severally. When you decide your Power of Attorney, you may choose a substitute attorney the event that your original attorney cannot or will not fulfil their duties.

Trusts

In developing your estate plan, you may choose to set up a trust for your family that takes effect during your lifetime or upon your death. A trust is created when one party transfers ownership of their assets to a trustee, who in turn holds and distributes those assets to the beneficiaries, according to the owner’s instructions. Setting up a trust may be advantageous for those who have minor children, where in the event the children are left with no living parents, the trust can provide an income to the minors and pay out the capital when they reach a specific age. Every trust is individual to the person who creates it, and is another way to ensure your family will be taken care of when you are no longer living.

A family member’s passing can become a stressful and confusing time for the surviving family members, especially if left without a will, Power of Attorney, or a trust in place. This is why estate planning is imperative. At Carson Law, we are here to help guide you through each step in your personalized estate plan. From creating a will specifically tailored to your wishes and preparing documents for your chosen Power of Attorney, our team will be there. Our Firm’s extensive knowledge of estate planning will enable us to set up, maintain and execute your family trust according to your instructions as well as provide professional trustee and executor services to ensure that your wishes are fulfilled as requested.

Articles written by Stacey Staios:

Should you consider a cohabitation agreement? What is wrongful dismissal?

Disclaimer

References

¹Ontario Ministry of the Attorney General; attorneygeneral.jus.gov.on.ca
²Ontario Ministry of the Attorney General .

Chad Blundy

May 29, 2020

Community

What Is Wrongful Dismissal?

Chad Blundy

May 29, 2020

Community

Author: Stacey Staios - Articling Student
Edited By: Ryan Carson

Wrongful dismissal is a commonly misunderstood term. In Ontario, an employer is allowed to terminate an employee on a without cause basis, so long as the employer’s decision to terminate the employment relationship is not discriminatory and the employer provides advance notice to the employee or payment in lieu of such notice, which is also known as termination pay. An employee is wrongfully dismissed when an employer terminates their employment without providing the proper notice or termination pay in lieu of such notice.

  
    Under the Employment Standards Act, 2000 (“ESA”), advance notice is required for every employee who has been continuously employed for at least three months.1  The minimum amount of statutory notice an employer must to provide an employee with depends on the employee’s length of service and can be found in the chart below.

During the applicable statutory notice period, the employer must fulfil specific obligations. An employer may not reduce the employee’s wages or alter the terms or conditions of their employment. The employer must provide benefit continuation throughout the statutory notice period and pay the employee wages that they are entitled to, which cannot be less than the employee’s regular wage for a regular work week.2  

According to section 61(1) of the ESA, an employer may terminate the employee’s employment without notice if the employer pays the employee a lump sum amount that is equal to the amount the employee would have been entitled to receive under section 60 of the ESA had notice been given in accordance with that section and if the employer agrees to contribute to the employees benefit plan during that time.

Wrongful dismissal occurs when an employer terminates an employee without providing the proper amount of notice or pay in lieu thereof. In some circumstances, employees may be entitled to common law reasonable notice. Common law reasonable notice is determined by looking at factors such as the character of the employment, the length of service, the age of the employee and the availability of similar employment. Some employees may have an employment contract that includes a termination clause which removes their right to common law severance and limits their entitlements upon termination to those prescribed in the ESA.

In the event that an employee is terminated, section 2 of the Employment Standards Act sets out a list of employees who are not entitled to notice of termination or termination pay.3  Employers may want to claim that there was just cause for the dismissal to avoid providing notice or termination pay to the employee.

However, if an employee believes that their termination was incorrectly labelled as being for cause, they may bring a claim to prove that their dismissal was not justified. In this case, the terminated employee may file such a claim against their employer seeking damages, which is also known as a wrongful dismissal action.

Period of Employment Notice Required

Less than 1 year 1 week
1 year but less than 3 years 2 weeks
3 years but less than 4 years 3 weeks
4 years but less than 5 years 4 weeks
5 years but less than 6 years 5 weeks
6 years but less than 7 years 6 weeks
7 years but less than 8 years 7 weeks
8 years or more 8 weeks

Disclaimer

References

¹Employment Standards Act 2000, s.54(a)
²Employment Standards Act 2000, s.60(1)
³Employment Standards Act 2000, s.2 .

Chad Blundy

May 26, 2020

Residential Real Estate

Alternative Approaches To Purchasing A Recreational Property

Chad Blundy

May 26, 2020

Residential Real Estate

As the summer of 2021 quickly approaches many Ontarians revisit considerations of investing in recreational and cottage properties. Many individuals have been deterred in the past from diving into this market due to concerns surrounding winterization, and various other maintenance demands involved in cottage property ownership. Prospective buyers who may have found themselves in this camp in the past may find attractive the increasing trend in this area of real estate, a move towards condominium and time share approaches to cottage country living. These alternative approaches present their own unique set of benefits.

Chad Blundy

May 25, 2020

Intellectual Property, Estate Administration, Community, Residential Real Estate

Should You Consider A Cohabitation Agreement?

Chad Blundy

May 25, 2020

Intellectual Property, Estate Administration, Community, Residential Real Estate

Author: Stacey Staios - Articling Student
Edited By: Ryan Carson

  
    A cohabitation agreement is an agreement signed by two unmarried individuals who are living together or intend to live together in the future. When a couple decides to live together, a cohabitation agreement can clearly set out the rights and obligations of each party, either in the event of a breakdown of the relationship or upon the passing of one of the partners.
  

  
     There are many benefits to entering into a cohabitation agreement, regardless of whether the parties intend to marry or remain in a common law relationship. For the purpose of support obligations, common law couples are defined in Ontario as couples who have lived together continuously for no less than three years, or one year if they are in a relationship of some permanence and have a child together.1
  

  
    When it comes to the division of property, there is a distinction between the rights available to common law couples and married couples. If one party in a common law relationship passes away without a will, the surviving common law partner does not have an automatic right to their spouse’s property under the Family Law Act  like a married couple would, regardless of the length of their relationship or cohabitation. Rather, they must have the courts determine their share via a claim in equity under a constructive trust, which can be overwhelming, costly and time consuming. 

Couples who decide to enter into a cohabitation agreement can ‘bypass’ these legal limitations and set out specifically what property they wish to leave behind to the surviving common law spouse. In the event of a breakdown of the relationship, the parties can, using a cohabitation agreement, contract out of any right or obligation that would otherwise take place without an agreement, including spousal support and the division of property.

  
    For some, entering into a cohabitation agreement under section 53(1) of the Family Law Act may be advantageous, particularly if there is a significant disparity in the parties income, assets or debts. Such agreements can keep these assets separate and have the couple remain financially independent. In the event that the couple decides to marry at a later date, a cohabitation agreement can transition into a marriage contract under section 53(2) of the Family Law Act. 2 
  

  
    When it comes to rights and obligations that both parties wish to contract out of using a cohabitation agreement, section 56 of the Family Law Act is applicable. This section states that a domestic contract, relating to the custody of or access to the child may be set aside and disregarded by the court if, in the opinion of the court, the contract is not in the best interest of the child.3  Further, section 56(4) of the Act states that a domestic contract may also be set aside if (a) a party failed to disclose any significant assets, debts or liabilities, or (b) if a party did not understand the nature or consequence of the domestic contract. Therefore, contingent on the parties satisfying these requirements, their domestic contract will stand in court.
  

Given that there is no statutory right to the division of property among common law couples, a cohabitation agreement may be entered into by those who wish to remain unmarried and have a division of property regime. It is important to have a qualified and experienced lawyer draft an agreement of this nature, as there are many factors and variables that can affect its validity. Whether you are inquiring about a cohabitation agreement, require one to be drafted, or need it to be reviewed by a lawyer, our team is here to help. At Carson Law our lawyers have many years of experience helping families in Burlington, Ontario and its surrounding areas create these domestic contracts in a cost effective and practical way.

Disclaimer

References

¹ Ontario Family Law Act, s.29.
² Ontario Family Law Act, s.53(2)
³Ontario Family Law Act, s.56 .

Chad Blundy

May 20, 2020

Intellectual Property, Commercial & Corporate

Trademarks, .com Domain Names, and Consumer Confusion

Chad Blundy

May 20, 2020

Intellectual Property, Commercial & Corporate

Over the past several years, e-commerce use has been growing exponentially, as consumers and corporations alike turn to this convenient method of exchange. As this trend increases, so too does the importance of a corporation’s domain name. Domain names (the words we see before “.com” in a given website’s URL) are consumers’ first impression of a corporation’s product or service, as their wording gives a taste of what the website will hold. Domain names are also often connected to a website’s meta tags, which are used to increase the likelihood that the website will appear as a result during search engine use.

Naturally, many corporations use their trademarked names as their domain names. This way, consumers who are familiar with the corporation’s mark can guess what the website’s URL will be, or can likely find the corporation’s website by entering the corporation’s name into a search engine.

But corporations using their trademarks as their domain names face a problem: other website creators may have domain names that are extremely similar to a corporation’s own domain name. Consumers guessing a corporation’s domain name, or typing a corporation’s name in a search engine, may mistakenly end up at another site with a similar domain name. Alternatively, consumers typing in the correct domain name of a corporation may also be automatically redirected to another site with a similar domain name.

In these cases, a corporation loses business from consumers who never arrive at the corporation’s site. These problems get worse when someone intentionally creates a site with a similar domain name to that of a site of a well-known mark; or when someone creates a site with a similar domain name to a corporation’s and also provides similar products or services to that corporation.

So, what can corporations do in these situations? There are several legal avenues that a corporation can take when their trademark or domain name is tarnished in these ways, and we will outline some of them here.

Deciding on the Best Course of Action

In these types of situations, a corporation’s choice of action will affect the remedy that it can receive. A corporation should choose its course of action based on its needs. For example, if a corporation mainly wants to stop consumers from being confused about the whereabouts and/or content of the corporation’s website, it will want to pursue a course of action whose remedy stops other sites from using domain names similar to their own. Similarly, if a corporation mainly wants to be compensated for the business lost, it will want to pursue a course of action whose remedy is damages.

For Stopping Consumer Confusion: ICANN Dispute Resolution Policy

Disputes over .com domain names are sometimes often regulated by the ICANN Uniform Domain Name Dispute Resolution Policy (UDRP). (Similar policies exist for other sorts of domain names—e.g., the CIRA process for .ca domain names—but discussing them goes beyond the scope of this article.) The remedies available to a complainant through this process are limited to the cancellation of the domain name or the transfer of the domain name registration to the complainant.

The Uniform Domain Name Dispute Resolution Policy (UDRP) applies to every registrant of a .com domain name by virtue of their obtaining it, because every accredited domain name registrar has adopted this mandatory process. Registrants must go through this dispute resolution process if another domain name user has brought a complaint against them asserting that they have done all of the following:

The domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; AND
The domain name holder has no rights or legitimate interests in respect of the domain name; AND
The domain name has been registered and is being used in bad faith.

For Damages: Legal Action of Passing Off

In many cases, complainants find the UDRP too narrow: either the policy does not adequately cover their concern, or the remedies are insufficient for their needs. The policy does not, however, preclude complainants from also bringing a legal action in court. The legal action that best lends itself to many domain name disputes is passing off.

Passing off in the context of domain name disputes requires that the defendant’s use of a domain name imports the reputation or knowledge of the plaintiff’s service or product into the consumer’s mind when they go to the defendant’s site (British Columbia Automobile Assn v OPEIU). In this way, the plaintiff is essentially trying to stop the defendant from capitalizing on the goodwill attached to the plaintiff’s mark.

Remedies for passing off can include interim and interlocutory injunctions; compensatory damages; and, if the defendant repeats their behaviour, or if it is otherwise a marked departure from the ordinary standards of behaviour by being planned or deliberate, punitive damages (Dentec).

Note that there is a two-year limitation period on this type of action.

Passing off requires the plaintiff to prove three criteria (Ciba-Geigy Canada Ltd v Apotex Inc, 1992 CanLII 33, SCC [Ciba-Geigy]):

Goodwill for the plaintiff’s company exists in the minds of consumers. This criterion is especially important in domain name disputes if a corporation conducts a significant portion of its business through the site, because, “[by] implication, they attach their goodwill to their services supplied through their ‘get-up’, their trade name” (Airline Seat Co v 1396804 Ontario Inc, 2000 CanLII 22666, ONSC [Airline Seat Co] at para 13).
The public was deceived due to a misrepresentation, so that they are led to believe that there is some business connection or association between the parties (i.e., so that confusion exists).
Actual or potential damage will occur to the plaintiff. In cases of passing off, potential damage is presumed when it is caused by the plaintiff losing control over its reputation through a misrepresentation (Ciba-Geigy). The defendant’s use of a domain name similar to the plaintiff’s can cause this loss of control (Law Society of British Columbia).

Again, the complainant should obtain independent proof of the above.

Other Possible Legal Actions

This article has mainly explained the ICANN dispute resolution process and the tort of passing off, but below we will describe some other causes of action that may be more appropriate to a complainant’s situation. Still, these causes of action describe situations where domain name similarity creates confusion for consumers about the location and/or content of the corporation’s website.

Trademark Infringement: A plaintiff may seek an interlocutory injunction on the use of the confusing domain name as remedy for breach of trademark. To achieve this remedy, the plaintiff must meet a three-part test: first, there must be a serious issue to be tried; second, the plaintiff must suffer irreparable harm without the injunction; and third, there is a balance of convenience.

Breach of Copyright: A breach of copyright claim may help corporations whose consumers, in trying to find the corporation’s website, find websites that have used the corporation’s website design, logo, or other artistic features. To succeed at this claim, the plaintiff must show that the defendant reproduced original artistic work belonging to the plaintiff without the plaintiff’s permission.

Defamation: A defamation claim can help corporations whose consumers, in trying to find the corporation’s website, come across websites that are intentionally trying to diminish the corporation’s reputation. To succeed at this claim, the plaintiff must show that the words in question have been published, that the words refer to the plaintiff, and that the words—in their ordinary or natural meaning, or in an extended meaning—are defamatory of the plaintiff.

Chad Blundy

May 13, 2020

Commercial & Corporate

Operating and Holding Companies - Why They Make Sense

Chad Blundy

May 13, 2020

Commercial & Corporate

A business can be structured using an operating company and a holding company together, where the operating company runs the business and the holding company oversees it. Using this structure, an operating company, or opco, is a public facing corporation that carries out and is liable for all active business. Often, an opco is a standard business that sells a product or service. By contrast, a holding company, or holdco, is a behind-the-scenes corporation that holds usually 100% of the shares in one or more opcos. Rather than carrying out active business, the holdco allows for an opco’s shareholder(s) to make the most of the opco’s dividends, taxes, etc. Think of a holdco as an administrative tool that supports an opco by giving its structure an extra layer. Note that both opcos and holdcos are incorporated.

To help illustrate some potential opco/holdco relationships, consider the following examples:

Let’s say Shannon is the sole shareholder in a company that sells handcrafted timepieces, called Freckle Past. If Shannon decides to use a holdco to manage her opco, she creates the structure in image 1 (right).

Now, let’s imagine that Shannon and Erika are equal shareholders of Freckle Past. Shannon and Erika have different ideas for managing their earnings, so they decide to each use their own holdco to manage their respective halves of the opco’s profit. That creates the structure in image 2 (right).

Finally, let’s say that, in addition to owning 50% of the shares in Freckle Past, Erika also owns 100% of the shares in a donut shop, Hole Foods. She decides to use one holdco to manage all of her shares, creating the structure in image 3 (right).

There are several advantages to the opco/holdco business structure.

The first few benefits are related to the fact that dividends from an opco can be transferred tax free to a shareholder’s holdco. Whether an opco has one shareholder or multiple shareholders, a shareholder can transfer opco dividends to their holdco instead of directly receiving the dividend as personal income. Doing so does not mean that the shareholder earns no income. By contrast, since the shareholder has complete control over their holdco, they can decide when they want to use their dividends as personal income, and how much of their dividends they want to use as personal income. Below, we’ve outlined a few instances where this element of choice is especially beneficial:

  
      Let's return to our example:
      
        We'll use the scenario where Freckle Past has two shareholders, Shannon and Erika, and each of them uses a holdco to manage their shares (image 2, above). Suppose that Shannon and Erika are trying to decide on the best time to pay the shareholders a dividend from the opco. Shannon feels that she needs personal income soon, but Erika does not—and does not want to pay income tax at present. Despite this apparent conflict, the shareholders will still be able to easily decide on a mutually convenient time for distributing the dividends from their shared opco, since the holdcos allow them to maintain their own income schedules. The next time that Freckle Past pays its shareholders their equal dividends (via their holdcos), Shannon can use her dividend as personal income while Erika can use her dividend to fund some investments.

When an opco has multiple shareholders, using holdcos means that the opco can distribute dividends when it is beneficial for the business, while shareholders can use these dividends on their own schedules, and in their preferred ways.
A shareholder who defers income tax when transferring their opco dividend to their holdco retains a larger amount of money to use before it becomes personal income (namely, to use on investments). Rather than taking the opco’s dividend as personal income, paying income tax on it, and then investing the remainder, the shareholder invests the money before it is taxed, grows it, and then has a larger sum to use.
A shareholder can reduce their own income taxes by distributing money from the holdco as income to several family members.

Storing excess money from an opco in a holdco creates two more opportunities for shareholders:

First, removing non-essential assets from the opco can protect them from creditor and liability claims within the opco, as the assets stored in the holdco cannot be collected for opco claims.

Second, removing excess money from the opco also helps the opco to meet the criteria for a business whose share sales count towards a shareholder’s lifetime capital gains exemption. The lifetime capital gains exemption refers to the dollar amount of shares in a non-public Canadian corporation that a shareholder can sell tax free. This amount, which is capped at a set maximum and which carries forward indefinitely through all of a shareholder’s sales, only pertains to businesses that meet certain criteria. One such criteria is that assets in the business in question remain active, and removing excess money from an opco ensures that the remainder of the “purified” money is active.

Using an opco/holdco structure presents many financial benefits for shareholders, but it adds some complexity to business administration (from legal and accounting perspectives, for example). If you would like to explore the possibility of using this structure in your corporation, our office would be pleased to discuss your options with you. Our extensive experience with corporate matters means that we can expertly guide you through the process of setting up and maintaining an opco/holdco structure.

Chad Blundy

May 8, 2020

Residential Real Estate, Commercial & Corporate, Community

Maternity Leave Announcement

Chad Blundy

May 8, 2020

Residential Real Estate, Commercial & Corporate, Community

Congratulations to our Real Estate Manager, Julie Saliba!

Julie will be on maternity leave from May 1, 2020 until November 1, 2021.

All real estate needs will still be completed in a timely manner and within the high standards that Carson Law demonstrates. If you have any questions, please feel free to contact us.

GENERAL INQUIRIES RYAN CARSON

info@carsonlaw.ca ryan@carsonlaw.ca

905.336.8940 905.336.8940 ext.1001

Chad Blundy

May 7, 2020

Community, Commercial & Corporate

Rent Assistance Program for Small Business Tenants

Chad Blundy

May 7, 2020

Community, Commercial & Corporate

On April 24, 2020, the Ontario Government announced rental assistance for small businesses during COVID-19. The Canada Emergency Commercial Rent Assistance Program (CECRA), has been developed for small business tenants and landlords to share the costs of rent.

For eligible businesses, both tenants and landlords will be asked to pay 25 per cent of the before profit costs, for April, May and June with the provincial and federal government paying the remaining 50 per cent.³

An eligible small business tenant is one that:
• Pays monthly rent not exceeding $50,000 in gross rent payments; and is,³
• A non-essential small business that has temporarily closed, or who is experiencing a 70 per cent drop in pre-COVID-19 revenues (determined by comparing revenues in April, May or June to the same month in 2019 or alternatively compared to average revenues for January and February 2020).³

The property owner must meet the following requirements:
• You own property that generates rental revenue from commercial real property located in Canada.¹ • You are the property owner of the commercial real property where the impacted small business tenants are located.¹
• You have a mortgage loan secured by the commercial real property, occupied by one or more small business tenants.*¹
• You have entered or will enter into a rent reduction agreement for the period of April, May, and June 2020, that will reduce impacted small business tenant’s rent by at least 75%.¹
• Your rent reduction agreement with impacted tenants includes a moratorium on eviction for the period of April, May and June 2020.¹
• You have declared rental income on your tax return (personal or corporate) for tax years 2018 and/or 2019.¹

*For those property owners who do not have a mortgage, an alternative mechanism will be implemented. Further information will be outlined in the near future.

All parties must also agree to enter into a rent forgiveness agreement in order to participate in the Canada Emergency Commercial Rent Assistance Program. This agreement will simply state that the landlord agrees to reduce the tenant’s rent by at least 75 per cent for the month of April, May and June; and the landlord agrees to not evict the tenant during those three months.

This forgivable loan program will be paid out directly to the mortgage lender of the qualifying commercial property owner by the Canada Mortgage and Housing Corporation. It is expected that CECRA will be operational by mid-May and be available until September 30, 2020. Support would be retroactive to April 1, 2020 covering April, May and June 2020. The federal government will be sharing more details of this program in the near future.²

Disclaimer

References

¹Canada Mortgage and Housing Corporation. (2020, May 1). Canada Emergency Commercial Rent Assistance (CECRA) for small businesses. Retrieved May 4, 2020, from https://www.cmhc-schl.gc.ca/en/finance-and-investing/covid19-cecra-small-business. ²Moher, J. (2020, April 27). Canada Emergency Commercial Rent Assistance Program for Small Businesses. Retrieved May 4, 2020, from https://www.dalelessmann.com/news/blog/canada-emergency-commercial-rent-assistance-program-small-businesses?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration. ³Office of the Premier. (2020, April 24). Ontario-Canada Emergency Commercial Rent Assistance Program. Retrieved May 4, 2020, from https://news.ontario.ca/opo/en/2020/04/ontario-canada-emergency-commercial-rent-assistance-program.html.

Chad Blundy

May 6, 2020

Community, Residential Real Estate

Since COVID-19, Where Have Home Prices Increased and Decreased Across the GTA?

Chad Blundy

May 6, 2020

Community, Residential Real Estate

““Everyday is an opportunity disguised as a challenge. No doubt we are all in the same storm but definitely in different boats so let’s be kind to one another. As these statistics show, real estate values on average are holding strong and in almost all GTA cities have increased from last year! This is still a great time to sell from a price standpoint if you were thinking of listing pre-COVID-19. The sky is not falling on the real estate market. First, take care of yourself, family, and friends. Second, if you need help let us or someone know as we are all in this together. Third, there is great opportunity out there, great listings that need buyers, and if I was looking personally or as an investor there is great inventory without the competition of multi buyers. Finally, stay safe and make sure to work with a realtor using all the necessary precautions when showing you homes.””

— Ryan Carson

Chad Blundy

May 5, 2020

Estate Administration

Powers of Attorney and Substitute Decision Making during COVID-19

Chad Blundy

May 5, 2020

Estate Administration

  
    With all that surrounds COVID-19, we may have started to consider what is important to us and what would happen if we were to suddenly become seriously ill.

With the current restrictions on travel and social gatherings, you may need to re-evaluate if your chosen attorney is best suited for the job. This person should be capable of quickly communicating, getting informed, asking questions and providing consent where necessary as well as know ahead of time what choices you would like to make. 

Perhaps ask yourself the following1:

•	Is that person immune-compromised?

•	Is that person in quarantine or otherwise vulnerable?

•	Will this person be able to safely and effectively perform the necessary functions?

•	If you have more than one attorney for unanimous decision-making, is this still achievable?

•	If your attorney is a front-line worker, can they still be available when the time comes?

If all else, you should appoint an alternate-decision maker in the event that your attorney becomes incapable or unwilling to act. If neither of these are appointed, to have your money, property and personal care looked after, a next of kin will need to bring a guardianship application before the Court.1In a normal world, this process is timely and costly. In the world we are currently living in, this could be difficult to execute with all Courts closed and only accepting urgent matters and select applications. 

Reminder: For the duration of COVID-19, powers of attorney must be witnessed by two witnesses, but the signing can be done by way of audio-visual communication, with the donor signing remotely and the two witnesses watching and signing by video call. For the remote signing, one of the witnesses must be a lawyer or licensed paralegal.

Disclaimer

References

¹Morris, S. (2020, April 21). COVID-19 Updates for your Business. Retrieved May 1, 2020, from https://www.mindengross.com/resources/news-events/2020/04/21/substitute-decision-making-during-covid-19-why-you-need-(or-may-need-to-update)-your-power-of-attorney

Chad Blundy

April 27, 2020

Estate Administration

Amendment to Wills and Powers of Attorney Requirements

Chad Blundy

April 27, 2020

Estate Administration

On April 23, 2020, the Ontario Government amended an order under s. 7.0.2(4), of the Emergency Management and Civil Protection Act allowing wills and powers of attorney to be witnessed and signed virtually.

First revision is that for both wills and powers of attorney, at least one witness must be a licensee within the meaning of the Law Society Act. The Law Society understands that the Ontario government means this to be an Ontario-licensed lawyer or paralegal at the time of signing.

Second, for wills executed and witnessed virtually, the testator may sign and witnesses may subscribe on separate copies of the will, in counterpart. Likewise, donors and witnesses to powers of attorney for property or personal care that are executed and witnessed virtually may sign on separate copies of the power of attorney, in counterpart.

These changes will remain in place for the duration of Ontario being under a State of Emergency. You can view the order here

For any questions or concerns, please contact our offices

905.336.8940
info@carsonlaw.ca

Chad Blundy

April 23, 2020

Community, Commercial & Corporate, Intellectual Property, Residential Real Estate, Estate Administration

Alternative Dispute Resolution during COVID-19

Chad Blundy

April 23, 2020

Community, Commercial & Corporate, Intellectual Property, Residential Real Estate, Estate Administration

With the Ontario Court of Justice limiting access to courthouses to help prevent the spread of COVID-19, there are still ways to settle a dispute without going to court. This method for resolving a legal dispute outside of the courts is called an Alternative Dispute Resolution (ADR). With the current state of affairs, this may be an appealing option to help parties settle their differences, rather than to wait for the courts to open and be backlogged with cases.

Below are some of the benefits of using the most common forms of Alternative Dispute Resolution, which are: Collaborative Law, Mediation and Arbitration.

  
    Collaborative Law 

•	Attorney assistance – each participant has their own lawyer 2

• Faster agreements – many cases take 4-6 months2

• Client control – clients decide the terms of their own agreements with help from their Collaborative attorneys. A final agreement will not be reached until both parties agree to it.2 

•	Maintains privacy – Participants of Collaborative law cases are able to decide what goes into the documents, which will become public record.2

•	Preservation of relationships – Collaborative Law helps to focus on communicating with each other instead of attacking.2

Mediation

•	A Mediator is an unbiased, impartial person who helps each party in their negotiations to help find mutually acceptable, practical solutions.5

•	Meetings can be scheduled, depending on each parties’ availability, to occur within days.1

•	Flexible formatting such as regular or on-demand follow up.1

Arbitration

•	Decision of an arbitrator is legally binding, as if it were made by a judge.4

•	A speedy and customized process tailored to the dispute issue.4

•	Private proceeding for reputation or business confidentiality .4

•	Can adhere to the current social distancing requirements.4

Alternative Dispute Resolutions are used in a way that is appropriate and best suited for both parties. There are other forms of ADR and the use of a specific method will depend on the nature of that particular dispute.3

For more information on the benefits of Alternative Dispute Resolutions, please visit any one of the below organizations within Canada that specialize in ADR.

ADR Institute of Canada (ADRIC)
Intellectual Property Institute of Canada (IPIC)
IP Neutrals of Canada

Disclaimer

References

¹Birnberg, G. (2020, March). The Business Case for Neutral Facilitation in the Days of the Coronavirus (COVID-19). Retrieved April 21, 2020, from https://www.mediate.com/articles/birnberg-neutral-covid.cfm ²Forest, C. (2019, February 20). Benefits of Collaborative Law: Win-Win Agreements. Retrieved April 20, 2020, from https://www.keepoutofcourt.com/benefits-of-collaborative-law/ ³Intellectual Property Office. (2018, September 25). Alternative dispute resolution. Retrieved April 21, 2020, from https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr04443.html ⁴Munro,, L. C. (2020, April 2). Arbitration COVID-19 Benefits: Lerners LLP London & Toronto. Retrieved April 21, 2020, from https://www.lerners.ca/lernx/arbitration-covid-19/ ⁵Waterous Holden Amey Hitchon LLP. (2019). Alternatives to Court – ADR. Retrieved April 21, 2020, from http://waterousholden.com/alternatives-to-court-adr/?gclid=Cj0KCQjws_r0BRCwARIsAMxfDRiTkhF4NAcKUaWz46-QOHXqMuK-N51HIuB38GVqssDdNW0hLl3BZcwaAro-EALw_wcB

Chad Blundy

April 21, 2020

Community

Joint custody during COVID-19

Chad Blundy

April 21, 2020

Community

child-custody-divorce-seperation-visitation-coronavirus-covid19-itakdalee-istock-20200326.jpg

Currently, navigating different environments in and outside of the home has become something of an uncertainty and a bit of trial and error. An item that is up in air in terms of legality and having parents hesitating on decisions, is how to properly handle joint custody and the transferring of a child between homes during COVID-19.

The Ontario courts are telling us that children’s lives cannot be placed on hold without risking serious emotional harm and upset to the children. However, some parents may have to forgo time with their child if they are under self-isolation due to recent travel or exposure to COVID-19¹.
It’s all about what’s in the best interest for the child and providing love and support from both parents. In some cases, a parent’s behaviour may raise concern about parental judgement and that will need to be taken into consideration. This can include failing to comply with social distancing, or not taking responsible health precautions.²

Parents with a shared custody agreement can refer to the Ontario Superior Court’s recent case, Ribeiro v Wright, 2020 ONSC 1829 (CanLII) for guidance on how to navigate this new normal.

In summary:

• The court says existing parenting arrangements and schedules should continue with modifications to ensure COVID-19 precautions, such as physical distancing, are being followed.²
• In some cases, the court says parents may have to forgo their time with the child if they have to self-isolate because they’ve become ill, they’ve travelled abroad, or they’ve been exposed to someone with the illness.²
• The Ontario Superior Court judge says there should zero tolerance in the eyes of the court for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.²
• There may need to be changes to transportation, exchange locations, or any terms of supervision, according to the court.²
• In step-families, the court says parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount of time in a household – including children of former or new relationships.²
• For the sake of the child, all parties must find ways to maintain important parental relationships.²

There will be no easy answer, for every household is different, but the need for collaboration and to work on developing new custody arrangements could be the best option for both parties.

The province of Ontario has set up a free legal aid hotline for residents unsure of their obligations during COVID-19.

Toll-free: 1-800-668-8258
Greater Toronto Area: 1-416-979-1446

The Law Society of Ontario has also launched a hotline where you can be connected with a family lawyer who will provide 30 minutes of free legal advice.

Crisis Line: 416-947-5255
Toll Free: 1-855-947-5255
www.findlegalhelp.ca

Disclaimer

References

¹Loriggio, P. (2020, March 30). Parents should respect custody arrangements during COVID-19 pandemic: Ontario courts. Retrieved April 13, 2020, from https://globalnews.ca/news/6753749/custody-agreements-ontario-courts-covid-19/ ² Ribeiro v Wright, 2020 ONSC 1829 (CanLII), , retrieved on 2020-04-13

Chad Blundy

April 20, 2020

Residential Real Estate, Community, Paralegal

To Tenants and Landlords during COVID-19 ...

Chad Blundy

April 20, 2020

Residential Real Estate, Community, Paralegal

  
    With the current environment, tenants and landlords are in the same boat when it comes to rent. Tenants are worried about their inability to make rent; landlords are worried about their operating costs and many people from both parties find themselves unable to meet the obligations of their contracts. 
Currently, no new eviction orders will be issued until further notice and sheriff’s offices will postpone any scheduled enforcement of current eviction orders.3

  
    Tenants who are able to pay their rent must do so, to the best of their abilities. If not, an honest conversation between a landlord and tenant is often the best first step in dealing with this challenging problem. With this conversation, deferring payments is the most common approach at this moment.  Looking into the future of lease agreements due to COVID-19, we can perhaps start to see ‘pandemic clauses’ become a standard feature of leases and agreements.1

  
    In the meantime, here is a list of short-term solutions that landlords may consider:

•	Basic Rent abatement or deferral.2 

•	Basic Rent suspension for defined periods i.e. 3-6 months or longer depending on the nature of the tenancy.2

•	Basic Rent deferrals for a defined period and a corresponding increase of Basic Rent at a point in the future to make up for a Basic Rent deferral.2

•	Either eliminating or reducing the obligation to pay Basic Rent and replacing it with the requirement to pay Percentage Rent for a defined period of time.  A switch to paying Percentage Rent is similar to a "pay what you can" approach.2 
  
•	Less common, is abating or suspending both Basic Rent and Operating Costs. Typically, landlords like to recover at least their out of pocket expenses such as realty taxes, insurance, utilities still and maintenance costs.2

•	Reduction or elimination of administrative fee and/or management fee component of operating cost charge.2

•	Reduction or elimination of promotional and marketing fees.2

•	Reduction of services offered and performed at the property to effect a reduction in operating costs to be charged to tenants during the COVID pandemic crisis.2

•	Depending on the size of the property, number of tenants and nature of the tenancies in a given property, a landlord can consider a reduction of services provided to tenants during the state of emergency, which would potentially reduce operating costs.2

•	If the landlord would rather that a particular tenant vacate its premises, then the landlord may consider building in an automatic termination or an option to terminate for the landlord.2

•	Ensure that any concession you agree to clearly provides the following2:

         → insert a consideration clause;

         → clearly state when the concession expires;

         → the lease is otherwise in full force and effect and remains unamended;

        → time shall continue to remain of the essence;

        → the concession is not a waiver of any other clause in the lease;

        → the indemnifier signs the amendment, if applicable.

Assistance for Tenants

If you need help financially you can:
• contact your local service manager
• apply for COVID-19 emergency assistance
• access federal government programs

Assistance for Landlords

Landlords may wish to:
• talk to their municipality about help with property taxes and municipal service fees.
• inquire with their mortgage lender about mortgage payment deferrals
• investigate federal government programs

Disclaimer

References

¹Hinton, K., & Mckenzie, R. (2020, April 1). 5 tips for handling commercial leases and contracts during COVID-19 and beyond. Retrieved April 20, 2020, from https://www.bcbusiness.ca/5-tips-for-handling-commercial-leases-and-contracts-during-COVID-19-and-beyond. ²Lanteigne, J., & Rosen, S. D. (2020, March 26). COVID-19 (coronavirus) advisory: Commercial landlord survival guide. Retrieved April 19, 2020, from https://gowlingwlg.com/en/insights-resources/articles/2020/covid-19-commercial-landlord-survival-guide/ ³Ministry of Municipal Affairs and Housing. (2020, March 28). Renting: changes during COVID-19 (coronavirus). Retrieved April 19, 2020, from https://www.ontario.ca/page/renting-changes-during-covid-19

Chad Blundy

April 19, 2020

Community

What Employers Need To Know During COVID-19 - Part 4

Chad Blundy

April 19, 2020

Community

GST/HST payments and other tax exemptions with small businesses is something that is top-of-mind during COVID-19. The CRA has put in place measures which should help alleviate some of these stresses. The CRA will permit all businesses to defer payment until the end of June 2020 on any GST/HST payments or remittances that are owing on or after March 27, 2020 and before June 2020 with no interest to payments.³ The deadline to file has remained the same, however, the CRA won’t impose penalties on a return that is filed late as long as it’s filed by June 30, 2020.³

The deadlines to file certain categories of tax and information returns have been extended:

• Trusts having a taxation year ending on December 31, 2019, may defer filing T3 returns until May 1, 2020.¹

• Partnerships and their members may defer filing T5013 returns until May 1, 2020.¹

• The deadline to file NR4 information returns has been extended to May 1, 2020.¹

For more questions and answers, please take a look at the Deferral of GST/HST Tax Remittances.

In conjunction with the GST/HST exemptions, the Ontario government has also announced the following measures to help support small businesses:

• Provincial tax deferrals on the Employer Health Tax (EHT), Tobacco Tax, Fuel Tax, Beer Tax and Mining Tax and other provincially-administered taxes until August 31, 2020 with no interest or penalty.²

• The Employer Health Tax (EHT) has temporarily increased, until January 1, 2021, from $490,000 to $1 million
→Employers who have to pay EHT have employees who physically report for work at your permanent establishment in Ontario; or have employees who are attached to your permanent establishment in Ontario; or have employees who do not report to work directly at your permanent establishment but are paid through your Ontario permanent establishment; and have Ontario payroll in excess of your allowable exemption amount.⁶

• Property tax reassessments being conducted this year for the 2021 tax year have been postponed.²

• Provincial Land Tax Payments are deferred from their next due date for 90 days without interest or penalty.²

For more information on the Employer Health Tax (EHT) or a full list of measures the Ontario government is taking.

Disclaimer

References

¹Brown, K., Meighen, C., Nearing, R. W., Purkey, F., & Juneja R. (2020, April 13). Tax Measures Under Canada’s COVID-19 Economic Response Plan. Retrieved April 15, 2020, from https://www.mccarthy.ca/en/insights/blogs/mccarthy-tetrault-tax-perspectives/tax-measures-under-canadas-covid-19-economic-reponse-plan ²Business, C. F. O. I. (2020, April 10). Canadian Federation Of Independent Business. Retrieved April 14, 2020, from https://www.cfib-fcei.ca/en/advocacy/employment-and-labour/ontario-covid-19-relief-measures-your-business ³Canada Revenue Agency. (2020, March 31). Government of Canada. Retrieved April 15, 2020, from https://www.canada.ca/en/revenue-agency/campaigns/covid-19-update/frequently-asked-questions-gst-hst.html ⁴Department of Finance Canada. (2020, April 11). Archived – Additional Details on the Emergency Wage Subsidy. Retrieved April 14, 2020, from https://www.canada.ca/en/department-finance/news/2020/04/additional-details-on-the-canada-emergency-wage-subsidy.html ⁵Department of Finance Canada. (2020, April 11). Government provides further flexibility for employers to access the Canada Emergency Wage Subsidy. Retrieved April 13, 2020, from https://www.canada.ca/en/department-finance/news/2020/04/government-provides-further-flexibility-for-employers-to-access-the-canada-emergency-wage-subsidy.html ⁶Ministry of Finance. (2020, April 7). Employer Health Tax. Retrieved April 15, 2020, from https://www.fin.gov.on.ca/en/tax/eht/index.html ⁷Ministry of Labour, Training and Skills Development. (2020, March 26). UPDATED: Ontario Enabling Financial Relief for Businesses. Retrieved April 13, 2020, from https://news.ontario.ca/mol/en/2020/03/ontario-enabling-financial-relief-for-businesses-1.html ⁸Osler. (2020, March 19). COVID-19 Quick-Reference Considerations for Employers. Retrieved April 14, 2020, from https://www.osler.com/en/resources/regulations/2020/covid-19-quick-reference-considerations-for-employers#Section1-a ⁹Shapiro, Hulton, & Lucha, B. (2020, April). COVID-19: The Essential Need-to-Know Guide for Employers and Employees: Insights. Retrieved April 13, 2020, from https://www.dickinson-wright.com/news-alerts/covid19-the-essential-guide-for-employers#a. Federal Amendments to the Canada Labour Code

Chad Blundy

April 18, 2020

Community

What Employers Need To Know During COVID-19 - Part 3

Chad Blundy

April 18, 2020

Community

In a continuing effort to support businesses and protect jobs by the Ontario government, a $1.9 billion WSIB financial relief package has been introduced with all premiums being deferred for six months to all businesses in the province covered by WSIB workplace insurance. Additionally, to help businesses in this time, WSIB will stop interest accrual on all outstanding premium payments.⁷ With these cost measures in place, WSIB will still continue to cover workers at all workplaces that are covered.

Learn more about the Financial Relief Package for Ontario Businesses.

  
    When it comes to employees and WSIB coverage, some workplaces may pose a higher risk than others in exposing them to the COVID-19 virus. Regardless, a worker is still entitled to WSIB benefits if they contract the virus while at the workplace. 
If a diagnosis via the workplace proves to be true, that employee may be eligible for wage loss benefits that include:

•	Any period in quarantine pre-diagnosis.9

•	Healthcare benefits.9

•	Permanent impairment benefits arising from the disease.9

•	In cases of fatality, the employee’s survivors could receive WSIB benefits.9

Please read the Adjudicative approach to find out how WSIB is making decisions about COVID-19 claims.

Disclaimer

References

Chad Blundy

April 17, 2020

Community

What Employers Need To Know During COVID-19 - Part 2

Chad Blundy

April 17, 2020

Community

Covid-19 In The Workplace

What happens if there is a confirmed case of COVID-19 among your employees? If you do find yourself in this situation, the disclosure of information should be kept to a minimal. During this time, the lines are blurred and questions arise on what is a reasonable amount of information to provide to your employees. The acknowledgement of this information to your employees will be influenced by factors such as: the employer’s health and safety obligations to employees under the Occupational Health and Safety Act, guidance from health authorities, advice from healthcare professionals and considerations such as the type, extent and volume of personal information required to be collected or disclosed in the circumstances.⁹ Currently, employers are advising coworkers who have been in close working conditions to someone who has tested positive for COVID-19 to protect themselves and prevent further exposure in the workplace.

Employees Right To Refuse Work During COVID-19

Under section 43 of the Occupational Health and Safety Act, most workers are entitled to refuse to work if they have a reasonable belief that working would put their personal health and safety at risk. During COVID-19, workers may refuse to work if their employer fails, refuses or can’t take appropriate measures to ensure the workplace is safe and will not spread COVID-19. On March 25, 2020, the Federal Government passed Bill C-13, COVID-19 Emergency Response Act. . A legislation that introduces amendments to the Canada Labour Code which provides unpaid leave of up to 16 weeks for employees who are unable/unavailable to work for reasons related to COVID-19 without the requirement of a medical note.⁹ However, the employee is required to provide written notice to their employer stating the reasons for leave. If an employer receives a written notice from an employee, the following must be noted:

• Reprisals: Employers cannot discipline, demote, lay-off, or dismiss an employee or threaten an employee with any of the foregoing because the employee is taking COVID-19 leave.⁹

• Benefits: Employers must still continue to provide pension, health, and disability benefits, and seniority or service accumulation for the duration of the leave. If applicable, employees are responsible for benefit contributions during the leave, unless they declare they wish to discontinue their benefits during the leave. Employers must continue to pay their proportionate contributions during the leave, if any.⁹

• Opportunities: Where an employee provides a written request, the employer must continue to provide information to the employee on leave of employment, promotion, or training opportunities relating to the employee’s qualifications that arise while the employee is on leave.⁹

• Vacation: Vacations may be interrupted to take COVID-19 related leave.⁹

• Parental Leave: The 78-week period for parental leave may be extended, and the 68 weeks available for parental leave may be interrupted in circumstances of a COVID-19 related leave.⁹

Job Protection During COVID-19

As of March 27, 2020, the Federal Government and certain provinces passed legislation to provide for new leaves of absence related to COVID-19. Leaves can be applied in the province of Ontario when (retroactive to January 25, 2020):

• The employee is under medical investigation, supervision or treatments for COVID-19.⁸

• The employee is acting is accordance with an order under the Health Protection and Promotion Act.⁸

• The employee is in isolation or quarantine in accordance with public health information or direction.⁸

• The employer directs the employee not to work due to a concern that COVID-19 could be spread in the workplace.⁸

• The employer directs the employee not to work due to a concern that COVID-19 could be spread in the workplace.⁸

• The employee needs to provide care to a person for a reason related to COVID-19 such as a school or day-care closure.⁸

• The employee is prevented from returning to Ontario because of travel restrictions.⁸

Learn more about the Infectious Disease Emergency Leave

Disclaimer

References

Chad Blundy

April 16, 2020

Community

What Employers Need To Know During COVID-19 - Part 1

Chad Blundy

April 16, 2020

Community

On April 11, 2020, the Department of Finance introduced the COVID-19 Emergency Response Act, No.2, which provides additional flexibility the Canada Emergency Wage Subsidy (CEWS), which was first launched on March 27, 2020.

In order to better address the reality of this situation and work with the ongoing changes, the Government of Canada has introduced the following flexibilities:

• To measure revenue loss, it is proposed that all employers have the flexibility to compare their revenue of March, April and May 2020 to that of the same month of 2019, or to an average of revenue earned in January and February 2020.⁵

• For March, the Government proposes to make the CEWS more accessible than originally announced by reducing the 30 per cent benchmark to 15 per cent, in recognition of the fact that many businesses did not begin to be affected by the crisis until partway through the month.⁵

• In recognition that the time between when revenue is earned and when it is paid could be highly variable in certain sectors of the economy, it is proposed that employers be allowed to measure revenues either on the basis of accrual accounting (as they are earned) or cash accounting (as they are received). Special rules would also be provided to address issues for corporate groups, non-arm’s length entities and joint ventures.⁵

• Registered charities and non-profit organizations would also be able to benefit from the additional flexibilities being provided to employers with respect to the revenue loss calculation. In addition, to recognize that different types of organizations are experiencing different types of funding pressures, it is proposed that charities and non-profit organizations be allowed to choose to include or exclude government funding in their revenues for the purpose of applying the revenue reduction test.⁵

CEWS would provide a 75 per cent wage subsidy to eligible employers for up to 12 weeks from March 15 to June 6, 2020. Eligible employers would include individuals, taxable corporations, partnerships consisting of eligible employers, non profit organization and registered charities.⁴ The Canadian Emergency Wage Subsidy would apply at a rate of 75 per cent of the first $58,700 normally earned by employees, which would represent a benefit of up to $847 per week, per employee.⁵

The Canadian government will continue to carefully monitor all developments relating to the COVID-19 outbreak and continue to take further action to protect Canadians and the economy.

Disclaimer

References

To help illustrate some potential opco/holdco relationships, consider the following examples:

There are several advantages to the opco/holdco business structure.

Let's return to our example:

Storing excess money from an opco in a holdco creates two more opportunities for shareholders:

Congratulations to our Real Estate Manager, Julie Saliba!

GENERAL INQUIRIES RYAN CARSON

CRS Law Collective