Ontario

Limitation Periods

Ontario has suspended the operation of most limitation periods, retroactively to March 16.  The Order is available here.

According to s. 7.1(6) of the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, the effect of this order is that time between March 16, 2020 and the end date of the Declaration of Emergency ceases to exist for the purpose of calculating applicable limitation periods.

Employment Standards

Overview

Human Rights Issues

The Ontario Human Rights Commission has put out a policy statement on COVID-19.  The section pertaining to employment reads:

Employment

The OHRC’s policy position is that negative treatment of employees who have, or are perceived to have, COVID-19, for reasons unrelated to public health and safety, is discriminatory and prohibited under the Code. Employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety.

An employer should not send an individual employee home or ask them not to work because of concerns over COVID-19 unless the concerns are reasonable and consistent with the most recent advice from medical and Public Health officials. In unique circumstances, an employer might have other health and safety concerns that could amount to undue hardship. They would need to be able to show objective evidence to support such a claim.

Employer absenteeism policies must not negatively affect employees who cannot work in connection with COVID-19. An employer may not discipline or terminate an employee who is unable to come to work because medical or health officials have quarantined them or have advised them to self-isolate and stay home in connection with COVID-19.

An employee who has care-giving responsibilities should be accommodated to the point of undue hardship, which might include staying home. These care-giving responsibilities which relate to the Code ground of family status could include situations where another family member is ill or in self-isolation, or where their child’s school is closed due to COVID-19.

Employers should be sensitive to other factors such as any particular vulnerability an employee may have (for example, if they have a compromised immune system).

Employers should give employees flexible options, such as working remotely where feasible, as a good practice, and as an accommodation even if they are not currently sick but need to self-isolate or stay home due to other reasons related to COVID-19.

Consistent with the OHRC’s Policy on ableism and discrimination based on disability and its Policy position on medical documentation to be provided when a disability-related accommodation request is made, employers should take requests for accommodation in good faith. Employers should be flexible and not overburden the health care system with requests for medical notes. Unnecessarily visiting medical offices increases further risk of exposure for everyone.

An employee who cannot work because of COVID-19 may be entitled to employee sick or disability leave and benefits offered by the employer or available under the Employment Standards Act or other government benefit programs.

At the same time, employers are entitled to expect that employees will continue to perform their work unless they have a legitimate reason why they cannot. If an employee is required to self-isolate for legitimate reasons, the employer is entitled to explore alternative options for how the employee may still continue to perform productive work for the employer (for example, telework). It is also not discriminatory to lay off employees if there is no work for them to do because of the impacts of COVID-19.

Employers may have other obligations (for example under the Occupational Health and Safety Act). The OHRC encourages employers to consult the Ontario Ministry of Labour, Training and Skills Development website for the most recent advice.

New Employee Leaves

On March 19, 2020, Ontario passed the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 which enacted new job-protected leaves for employees affected by the COVID-19 crisis.  

For a summary of the changes, see one of these resources:

Layoffs

Layoffs due to lack of work are only available in limited circumstances, as detailed by Professor David Doorey in COVID-19, Layoffs, and Employment Standards: An Introduction.

Frustration and Termination of Employment

Ordinarily, employees whose termination entitlement are governed by the Employment Standards Act are entitled to notice of termination or termination pay under Part XV of the Act.  However, there are regulatory exemptions in O. Reg. 288/01:

2(1) The following employees are prescribed for the purposes of section 55 of the Act as employees who are not entitled to notice of termination ro termination pay under Part XV of the Act: 

...

4. An employee whose contract of employment has become impossible to perform or has been frustrated by a fortuitous or unforeseeable event or circumstance.

Employers relying on this section risk being non-compliant with section 55 if the alleged frustration is not established.

Practice - Specific Discussion Groups

Case Law

Case Law

Rabczak v Dunford, 2020 ONSC 3031

Eviction - moratorium - enforcement - leave of court - jurisdiction

Para 18: "While the applicants are correct that if they wish to enforce an eviction in light of the moratorium in force in Ontario today, they will need leave of the court. However, before asking the court for leave to enforce an eviction order, they first need to obtain an eviction order to enforce. That can only be done at the Landlord and Tenant Board."

Para 19: "No one expected the shutdown of the economy wrought by the pandemic. It has left both sides potentially in extreme circumstances. I expect that negotiation among the parties, approached  with empathy for the situation the other, will provide the most efficient, affordable, and acceptable outcome and one that is consistent with the cooperation required by all of us in these very unusual and distressing times."

Case Law

R v Collingwood Prime Realty Holding Corp, 2020 ONSC 2953

Criminal - jail sentence - whether to impose 

Para 70: Lastly, in deciding whether a jail sentence is imposed, I am in the position of a judge at first instance. The COVID-19 crisis must be taken into account. In this case, the public interest in a jail sentence, gauged by the short 45 day intermittent sentence imposed by the sentencing justice, was not strong. On the other hand, the threat to an individual in jail presented by the virus has been well-documented and is not insubstantial: R. v. Williams2020 ONSC 2237 at paras. 65-89. This militates against a jail sentence for Mr. El-Hinn.

Para 71: I am heartened in this conclusion by the knowledge that in response to the virus threat in the jails and in order to reduce capacity, the Ministry of the Solicitor General has seen fit to provide immediate Temporary Absence Program admission to all those offenders facing intermittent sentences (see RESPONSE TO COVID-19 INFORMATION NOTE, Ministry of the Solicitor General, Institutional Services Division, Assistant Deputy Minister’s Office, May 5, 2020, p. 8). Those individuals with intermittent sentences will not have to serve time in correctional institutions.

Para 72: I am aware of the general distaste for considering post-sentencing decisions by jail and parole administrators in crafting a sentence. But the decision of the authorities here is significant for what can be drawn from it with respect to the state of our prisons. The judgment of those in charge of the jails who have the most up to date and reliable information supports the conclusion that at present, there is an additional hardship and threat to inmates in prison. This fortifies the conclusion that the individual and collective cost of an intermittent jail sentence in the time of COVID-19 outweighs any benefit to the public interest.

Court Updates

Court Updates

Court of Appeal for Ontario

Date Update Source
April 28, 2020

Questions and Answers – Practice Directions Concerning Timelines and Extensions of Time (COVID-19)

 

These questions and answers are intended to help the legal profession and the public understand the Court's new Practice Directions about timelines during the COVID‑19 emergency.

https://www.ontariocourts.ca/coa/en/notices/covid-19/faq.htm
April 20, 2020

Practice Direction – New Court of Appeal Release Order Form – COVID-19

 

This practice direction applies until further notice and should be read in conjunction with the Criminal Appeal Rules, SI/93-169, Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario, and Practice Direction Concerning Applications for Bail Pending Appeal at the Court of Appeal for Ontario Given the Exceptional and Evolving Circumstances Concerning Covid-19, and all applicable federal statutes.

https://www.ontariocourts.ca/coa/en/notices/covid-19/practice-direction-bpa.pdf
April 6, 2020

PRACTICE DIRECTION REGARDING THE ELECTRONIC CONDUCT OF MATTERS DURING THE COVID-19 EMERGENCY

 

 

https://www.ontariocourts.ca/coa/en/notices/covid-19/practice-direction-electronic-conduct.pdf
April 5, 2020

Practice Direction – Bail Pending Appeal – COVID-19

 

This practice direction applies until further notice and should be read in conjunction with the Criminal Appeal Rules, SI/93-169, Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario, and all applicable federal statutes.

https://www.ontariocourts.ca/coa/en/notices/covid-19/practice-direction-bail.pdf
Court Updates

Ontario Superior Court of Justice

Date Update Source
May 13, 2020

Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media

 

This Notice consolidates previous province-wide direction in a single document so that reference to previous provincial Notices relating to COVID-19 is not required.

 

While in-court operations were suspended, the SCJ has not closed.  It continues to expand its operations virtually – in writing, or by telephone or video conference hearings.  During this suspension of regular in-court operations, lawyers and parties are expected to take an active role in moving cases forward to final settlement or disposition, including seeking and attending virtual court attendances.

 

This Notice, effective on May 19, 2020, supersedes previous provincial Notices issued between March 15, 2020 to May 5, 2020 relating to the COVID-19 crisis, except the Notice regarding the Suspension of Small Claims Court Operations (May 4, 2020).

 

This notice addresses the following: suspension of in-court hearings and jury trials; procedures governing all SCJ proceedings during suspension of in-court operations; procedures governing civil and family matters; other procedures governing family law and child protection matters; and procedures governing criminal matters.

https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/consolidated-notice/
May 4, 2020

Notice Regarding the Suspension of Small Claims Court Operations (May 4, 2020)

 

This notice addresses the following: urgent matters; steps to seeking an urgent hearing; suspension of counter service in small claims courts; unsworn affidavits; and filing fees.

https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/suspension-small-claims-ops/
Court Updates

Ontario Court of Justice

Date Update Source
May 19, 2020

COVID-19: Notice to Counsel/Paralegals and the Public Re: Provincial Offences Act Matters in the Ontario Court of Justice

 

This notice addresses the following: Limitation periods under the Provincial Offences Act; scheduling directives (all proceedings, appeals, pre-trials, and young persons); and electronic signatures.

https://www.ontariocourts.ca/ocj/notice-to-public-regarding-provincial-offences-act-matters/ 
May 15, 2020

COVID-19: Notice to Counsel and the Public re: Criminal Matters in the Ontario Court of Justice 

 

No trials or preliminary inquiries will be conducted until July 6, 2020 at the earliest, unless a judge seized with a continuing matter orders otherwise and the Regional Senior Judge is satisfied that the necessary courthouse resources are in place. All criminal court appearances in the Ontario Court of Justice between Monday March 16 and Friday May 29 involving accused persons who are not in custody will be adjourned, in the absence of the accused person, as discussed in detail below.  An update regarding out-of-custody appearances that were scheduled to occur between June 1, 2020 and July 3, 2020 will be posted soon.

 

This notice provides updates on the following: legal assistance from Legal Aid Ontario; scheduling directives; serving and filing court documents; judicial pre-trials; guilty plea proceedings; bail hearings; applications to vary release orders and police undertakings; and media.

https://www.ontariocourts.ca/ocj/covid-19/media-access/
May 14, 2020

Notice to the Legal Profession and the Public regarding the process of emailing documents at the Ontario Court of Justice (updated May 14, 2020)

 

We ask members of the legal profession and members of the public to NOT attend courthouses in person at this time, unless a judge requires you to be in court for a hearing or if you are unable to submit a filing by email in accordance with the instructions below.  If you are unable to submit your filing by email, contact your local courthouse to determine the other options that are available or information about attending your local courthouse.

 

Filings can be temporarily submitted by email. In criminal cases, legal professionals (counsel and agents authorized under s. 800(2) of the Criminal Code) are required to file documents by email, unless otherwise directed by a judicial official.

https://www.ontariocourts.ca/ocj/covid-19/emailing-urgent-documents/ 
May 11, 2020

COVID-19: Ontario Court of Justice Protocol Re Bail Hearings

 

This protocol addresses the following: pre-court preparations and discussions; written materials; the hearings; sureties; procedure for effecting release; remote fly-in First Nation communities; and special bail hearings.

https://www.ontariocourts.ca/ocj/covid-19/covid-19-protocol-bail-hearings/ 
May 11, 2020

COVID-19: Consent Variation Procedures for Release Orders and Police Undertakings in the Ontario Court Of Justice

 

The Ontario Court of Justice has adopted new procedures to help individuals apply to vary their release conditions without having to go to court in person. The new procedures allow for the consent variation of release conditions for individuals who have been released either by the Court (s. 515 of the Criminal Code) or by the police (s. 498, 499 or 503 of the Criminal Code).

 

These procedures address the following: consent variations of judicial release (bail) orders, and consent variations of police undertakings.

https://www.ontariocourts.ca/ocj/covid-19/covid-19-consent-variation-procedures/ 
May 7, 2020

COVID-19: Scheduling of Family Matters in the Ontario Court of Justice (May 7, 2020)

 

Starting on May 19, 2020, cases conferences in previously adjourned matters and, subject to local direction, other matters will be permitted to be heard in the Ontario Court of Justice. In addition to these matters, each local courthouse will continue to hear certain in-chambers requests.

 

New proceedings, unless urgent, will not be heard at this time.

The scheduling and document filings requirements for case conferences and other matters will be determined locally by the Local Administrative Judge, keeping in mind the limited on-site court staff resources.

 

All other family court matters not addressed by this Notice (for example, trials) and previously scheduled between March 28, 2020 to May 29, 2020 will be now be adjourned until July 6, 2020.

 

This notice addresses the following: scheduling of family matters in the OCJ; filing; trials; pre-court discussions; legal resources; and media.

https://www.ontariocourts.ca/ocj/covid-19/covid-19-family-matters/ 
May 4, 2020

All Provincial Offences Act matters scheduled from Monday, March 16, 2020 through to and including Friday, May 29, 2020 will be adjourned and rescheduled to a later date. If you have a matter scheduled during this time, you do not need to attend court. This applies to all POA courts in Ontario.

 

A notice of your new court date will be sent to you by mail to the address on file with the court.

https://www.ontariocourts.ca/ocj/notice-to-public-regarding-provincial-offences-act-matters/ 

Legislation and Orders