Legal issues to keep in mind as we navigate uncharted waters

March 24th, 2020 by Iler Campbell

We are living in very unusual times. While we have adopted a physical distancing policy with many of us working from our home offices, we are very much up and running, ready to serve client needs.

In the last few days, we have been asked a variety of questions that, frankly, are new to us. We know that you are struggling with them too. This article attempts to highlight some of the issues that you may already have faced or may be facing tomorrow. Remember, if or when these issues arise, we are here for you.

We’ve tried to group them according to legal topic. Some of these will relate to you and some not. There is no legal advice in this blog. Just information that might help you know when it’s time to call for assistance.

Employment law

  • Privacy ‑ We are all in uncharted water as employers. Many employers – us too – currently have staff working from their homes rather than in the workplace hoping to help “plank the curve” so that the health care system won’t collapse under the weight of too many people getting sick with COVID‑19 at once. Working from home is not the same as working in the office. From a legal perspective, one of the biggest considerations is making sure that as an employer, you meet your obligations to keep information private that should be kept private. This means secure electronic and hard copy documents, especially where employees share space with others.
  • Privacy of Health Information ‑ You may be wondering about your obligations to maintain the privacy of staff members who have been diagnosed with COVID‑19, and who may have come into contact with others in your workplace, including clients or third parties.
  • COVID‑19 concerns ‑ Still other employers will be faced with situations where employees have been instructed by health authorities to self‑isolate or are too sick to work. We know from the SARS experience of 2003 that temporary illness can constitute disability and therefore there are some human rights considerations in these cases. Additionally, the province has changed the rules around requiring medical notes from employees who are absent for a reason related to an infectious disease, so it is important to stay on top of those developments.
  • OHSA ‑ You have obligations to keep staff safe under the Occupational Health and Safety Act and during this time some work you have for staff may raise concerns about safety.
  • New hires ‑ Perhaps you’ve made a recent decision to hire someone who hasn’t yet started but whom you now no longer need or can afford.
  • Layoff ‑ Depending on the circumstances, some employers will be forced to consider laying off employees. Layoffs are tricky territory at any time, and even more so now. In Ontario, temporary layoffs can last up to 13 weeks in a 20 week period, and they can be extended to last as long as 35 weeks in a 52 week period so long as the employer meets certain additional conditions, including providing substantial payments to the employee and continuing benefits. Layoffs can be highly fact specific, so it is important to seek legal advice if you are considering them.

Governance Requirements

  • Board Meetings ‑ Most of our clients – co‑ops especially – are very keen on having regular meetings, especially in a crisis like the one we all face, to ensure that community needs are met. While meeting is good, it needs to be done in the context of the advice, and in some cases, directives, of public health officials. Luckily, we live in times where it is possible to hold meetings by many means, not just face to face. This may be a time to try new technology or telephone technology but just remember that all those eligible to participate must have the technology necessary to participate; all those participating must be able to hear everyone and be heard by everyone; and all other meeting requirements must be met – notice, in camera, minutes, chair, meeting rules, etc. Also, check your by‑laws to make sure that there is nothing in them that prevents holding “virtual” board meetings.
  • Annual General Meetings ‑ If your AGM is coming up, it may be time to postpone it to another time. While you may have a legal obligation to hold it within a certain time frame, consider how big a gathering public health officials now consider to be safe and what consequences there would be to delay it to a time when all members or shareholders can attend safely to have their voices heard. The existing board will stay in place until a new board is elected at some future date. Likewise, the budget. If you would like to discuss the risks of delay with us, give us a call or drop us an email.
  • Audits ‑ Like many businesses, auditors will be practicing physical distancing and will likely not be available to conduct a field audit. Audits may necessarily be delayed.
  • Agency relationship ‑ For federal co‑ops, the Agency for Co‑operative Housing has said this:

“For co-operatives with an AIR coming due, we remind you that your auditor can file it as soon as your board of directors has signed off on your draft audited financial statements. If you feel concern about meeting any of our deadlines, please let your relationship manager know.

The boards of housing co-operative and their staff and members will have their own decisions to make about holding meetings, particularly where seniors and those with pre-existing health conditions will be present. We encourage you to follow the guidance of public-health agencies. Please stay up to date with what is recommended by responsible sources, keeping safety in mind, as their advice is evolving quickly.”

  • Service Managers ‑ For housing providers who report to service managers, each will offer different advice. Check with them to be sure that you understand their expectations.

Housing Law

Housing providers also have certain duties to their tenants and co‑op members. Safety for all will be the paramount guiding factor in making decisions. Here are some of the questions we’ve been asked.

  • Shared facilities ‑ As with any other building where multiple people are sharing the same building infrastructure, extra cleaning is warranted. Consider measures like limiting the number of people in elevators at any one time or in laundry rooms.
  • Contractors in units ‑ Given that we are all now strongly encouraged by all levels of government to engage in physical distancing, contractors or maintenance people may not want to enter units, and the same may go for tenants and co‑op members. Housing providers will need to be creative to figure out how to conduct emergency maintenance and will, in nearly all cases, leave non‑emergency maintenance for another time.
  • Evictions ‑ There are currently no LTB hearings and no Sheriff enforcements but the LTB is still receiving applications. If you are issuing notices to appear, you may wish to consider offering to conduct the notice to appear meeting by teleconference providing that the member or members being invited to attend have the equipment necessary to participate fully – being heard by everyone and hearing everyone.
  • Gatherings among tenants and members – Given physical distancing measures being recommended you may be asking yourself what you can do to limit gatherings among tenants and members. As noted above, you may want to address the number of people using any particular common space at any one time. What makes sense for you will depend on the layout of your co‑op and the facilities available.
  • Housing charge or rent payments – We are all going to struggle financially through these times – that’s something we all can be sure of. Your landlord or your co‑op is no exception. They have contractual obligations to make payment; tenants and co‑op members have legal obligations to pay rent and housing charges.
  • CHFT and ONPHA have both published COVID alerts – See CHFT’s alert here and ONPHA’s COVID-19 page here. We’re confident that like us, they will be doing their best to keep on top of issues related specifically to housing.

Law related things to do!

Finally, some of you may be looking for ways to pass the time as you practice distancing. As you may know, we have conducted a number of webinars over the last year on legal topics that may interest you. These are available from our website at here.

Check out Celia’s recent workshop, Human Rights & Housing in – An Overview;

Michael’s webinar titled, Cannabis legalization and policy implementation: what’s next?;

Claudia’s Community Land Trusts – everything you’ve wanted to know;

Safia’s workshop, Employment Standards Act – Amendments in 2018 and 2019 and what they mean for you; and

Shelina’s Getting your message out without getting yourself in hot water: Good practices for using the internet and social media to promote your organization.

Filed in: Employment Law, Firm News, Housing, Litigation