Erin Kuzz of COCA Associate Member Sherrard-Kuzz LLP, addressed the Canadian Manufacturers and Exporters’ Workplace Health and Safety Symposium yesterday. Her address was titled “COVID19- Is Your Workplace Ready?”
The Council of Ontario Construction Associations has released its’ 2019 Year in Review publication.
The following is a meta-review of what lawyers are saying on-line about an employer’s duty under the OHSA to send a worker with apparent COVID-19 symptoms and a worker’s right to refuse to work with a colleague who is exhibiting such symptoms in the work place. This following is general information, and not intended as legal advice.
1. The duty of an employer to send an obviously sick employee with flu-like symptoms home to ensure a safe workplace
McMillan LLP: Employers (and workers) are responsible for ensuring the safety of their workplace. A worker who has symptoms of the coronavirus, or who has had direct contact with someone else who has symptoms of Coronavirus, “should be denied access to work, sent home for isolation and advised to see a doctor.” McMillan is also advising employers to consider whether a worker who has recently returned from a trip to Wuhan (McMillan’s article was written in January) during the outbreak “ought to be sent home for isolation.” Employers are advised to “exercise good judgement” in encouraging workers who are experiencing symptoms to stay at home, instead of taking the risk of contaminating the workplace. In all cases, human rights legislation needs to be top-of-mind (and all of the articles I sent to you discuss this).
Daniel Lublin: The responsibility of the workplace parties to ensure a safe and healthy workplace includes preventing the spread of a contagious illness. He says an employer “is required to protect the remainder of its work force” if a worker is showing symptoms of the coronavirus and has either travelled to an affected area or been in direct contact with someone who has symptoms of the coronavirus. He says that under such circumstances, these workers “should not be permitted to return to work until and unless they have a clearance letter from a physician and pose no risk of infecting the workplace.” He says the same goes for individuals who visit the workplace, i.e., clients, contractors, etc., and that employers need to take “reasonable precautions” to ensure that visitors who pose a danger are denied access to the workplace.
Hicks Morley: They did not speak to your question of what to do if a worker shows up for work with flu-like symptoms. But sort of contrary to what McMillan said, Hicks Morley says an employer would need to keep human rights considerations in mind if it required a worker to stay away from the workplace because the worker had recently visited a high risk area. It points out that while the HRTO does not generally view a cold or the regular flu as a disability that falls under the OHRC, the coronavirus may be considered a disability in the case of a pandemic, and would therefore require accommodation.
First Reference Talks: This author talks about the duty employers have “to take all reasonable precautions to prevent injuries or accidents in the workplace” under the general duty clause included in Canadian occupational health and safety legislation. She says employers should, among other things, have a workplace policy that applies to workers, contractors and visitors alike which says people who have flu symptoms “are not allowed access to the workplace.” But she later says “Employers should reinforce sick leave policies and encourage employees to stay home if they are feeling ill, to the extent feasible,” (emphasis added), which is a much weaker statement. She does say that an employer may “demand” that employees get a medical letter to justify a leave or as a clearance to return to work “in certain circumstances,” but she follows that up with advice to “be mindful of exposure to human rights and privacy liabilities.” When earlier discussing the associated human rights issues (as the other articles do as well), the author says, “Employers should balance the duty of care owed to their entire staff against the rights and obligations of individual employees,” and also that “Employers must ensure that screening procedures, requests to stay away from the workplace and other practices do not run afoul of applicable laws.”
Fillion Wakely Thorup Angeletti LLP: This lawyer states that, “Where an employee is clearly exhibiting flu-like symptoms or has a confirmed case of Coronavirus, employers are within their rights to send the worker home, either with or without pay depending on applicable policies, plans, and past practices.” He goes on to say that if the coronavirus is considered to be a disability under the OHRC, a worker who is confirmed to have it would be entitled to reasonable accommodation. Near the end he says it’s “not advisable to require workers to stay home unless there is objective evidence that they pose a health and safety risk.”
2. Whether other employees can refuse to work in the presence of a sick co-worker
McMillan LLP: With the exception in Ontario of first responders, correctional officers and healthcare workers, the OHSA provides workers with the right to refuse to work if they believe there is a condition in the workplace that is “likely to endanger” their health or safety. If a worker refuses to work for a Coronavirus-related reason, the employer needs to comply with its obligations under the OHSA by immediately investingating the situation and trying to resolve the situation with the worker and, if that fails, by contacting a MLTSD inspector. Employers are not allowed to threaten to discipline a worker who refuses to work because of Coronavirus-related health and safety concerns.
Daniel Lublin: The OHSA allows workers to refuse work that is “likely to endanger” their health or put them at risk. He says workers can refuse to perform their duties if a coronavirus outbreak in Canada exposes them to people or situations where infection is likely. Again, the employer will need to investigate and attempt to resolve the situation and if unsuccessful, will need to contact a MLTSD inspector. Until the situation is resolved, the worker should be allowed to continue to refuse the work that he/she believes is unsafe, without fear of reprisal.
Hicks Morley: The OHSA provides most workers (see above) with the right to refuse work if a condition of the workplace “is likely to endanger” the worker’s health or safety. The article says that workers who “encounter” the coronavirus in their workplace, or who are scared they may encounter it, may exercise their right to refuse work on that basis. If that happens, the employer needs to follow the procedure set out in the OHSA for work refusals, with failure to do so resulting in fines. They say, “In responding to these issues, it is important for employers to attempt to balance a responsible approach to legitimate employee concerns while taking care not to act unreasonably, or based on misinformation and unreasonable fears.”
First Reference Talks: Again, “likely to endanger” is key, and workers who encounter the coronavirus in the workplace, or fear they might, may choose to exercise their right to refuse work. This can include the right to refuse travelling to a high-risk place for business purposes. Following the regular process to resolve the issue under the OHSA applies.
Fillion Wakely Thorup Angeletti LLP: This lawyer says that most workers have the right to refuse work if they genuinely believe that a condition of the workplace is “likely to endanger” his/her health or safety, which could happen with the coronavirus. He says employers will want to try to prevent potential work refusals by implementing various proactive measures in the workplace (as all authors advocate). Employers in the healthcare sector and unionized employers, in particular, are encouraged to obtain legal advice in cases involving the coronavirus.
Michael Zacks
Director and General Counsel
Office of the Employer Adviser
505 University Ave., 20th Floor
Toronto ON M5G 2P1
Tel: (416) 314-8735
Fax: (416) 327-0726
Thank you to these awesome members for sponsoring our 2020 Hockey Tournament! Your support makes this event successful!
Included in your BCA membership, is a membership with COCA. The Council of Ontario Construction Associations (COCA) is a federation of construction associations, the largest and most representative group of Industrial, Commercial Institutional (ICI) and heavy civil construction employers in the province. We bring the concerns of our members to the attention of Queen’s Park and are committed to working with the government to ensure that Ontario’s legislative landscape is one in which our industry can grow and prosper. Use the link below to review of the activities and successes of your provincial construction association over the past twelve months.
The Barrie Construction Association Member Directory is an annual publication that lists all BCA member companies. It is distributed to all members as well as key individuals in purchasing departments throughout Simcoe County and beyond.
This handy guide lists all members alphabetically and by division. Advertisements are placed within your divisional category making your company stand out above the rest! Don’t miss out on the opportunity to showcase yourself to over 350 members and procurement professionals in our region! Click on the price links below to purchase ad space.
Full Page Advertisement (4.75″ x 7.5″)
Half Page Advertisement (4.75″ x 3.5″)
Business Card Size Advertisement (4.75″ X 1.75″)
Formats accepted are JPEG, PDF and TIFF.
Changes can be made to existing artwork. The fee starts at $50 but may be higher depending on the scope of work. Details can be discussed with Bryony prior to confirming ad placement in the 2020 edition.
All new ads will be charged a one time set up fee of $30 + HST
For further details, please contact Bryony at bryonybuchanan@barrieca.com
From Kennaley Construction Law
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In the last couple of years, several high-profile Canadian companies have sought protection under the Creditors Companies Arrangement Act (“CCAA”). In a number of cases, the company had a labour and material bond, which had been given to underwrite the company’s obligations to pay subtrade suppliers of services and materials in construction. In this article, we will discuss the subcontractor’s ability, where the principal under the bond has obtained CCAA protection, to litigate the bond claim notwithstanding the usual Initial Order (issued under section 11.02 of the CCAA) staying proceedings “against or in respective of” the principal, its business or its property. Some would argue, for example, that because a claimant will not be able to prove a claim against the bond without first establishing that the principal owes it monies under the subject contract or subcontract, any proceeding to enforce the bond must be a proceeding “in respect of” the principal such that the stay must apply. We suggest, however, that the language of the CCAA itself, as well as applicable case law, confirms that the stay ought not apply.
First, an action against the principal is not, based on the plain wording of the standard form bond itself, a condition precedent to a claim. In addition, numerous cases confirm that claimants can and do pursue labour and material payment bond claims in proceedings to which the underlying debtor/principal is not made a party. See, for example, Truro (Town) v. Toronto General Insurance Co., [1974] SCR 1129, 1973 CanLII 169 (SCC), Harris Steel Ltd. et al. v. Alta Surety Co., 1992 CanLII 4560 (NS SC), Campbell Comeau Engineering Ltd. v. Alta Surety Company, 1996 CanLII 5343 (NS SC), Williams v. Axa Pacific Insurance Co., 2003 CanLII 49306 (ON SC) and Harris Steel Ltd. v. Seaboard Surety Company of Canada,, 2003 CanLII 49313 (ON SC).
In addition, a labour and material payment bond is a guarantee, made by the surety, that the bonded contractor or subcontractor will pay its subcontractors for their labour and materials supplied to the bonded project. This is significant given section 11.04 of the CCAA, which provides that an order for a stay under section 11.02 has no effect on proceedings against a person, other than the company in respect of which the order is made, who is obligated under a guarantee in relation to that company. The rationale for s.11.04 (as it applies to sureties) was addressed in Browne v. Southern Canada Power Co. [1941] CarswellQue 14 (C.A. Que.), an oft-cited case of the Quebec Court of Appeal in which the court rejected a surety’s argument that an action against it on a bond should be stayed. The Court stated:
“It is a somewhat startling proposition that a surety can avail himself of the bankruptcy of his principal debtor to avoid or modify his own obligation. A contract of commercial suretyship, such as is under consideration in the present case, is generally for the very purpose of guaranteeing the solvency of the principal debtor. … . The very special remedies authorized by law for the exclusive benefit of a debtor company are not available to third parties. The Companies’ Creditors Arrangement Act is a special statute, to be restrictively interpreted, and its benefits accrue to those alone envisaged by the statute. Its provisions only come into play after the debtor has become bankrupt, thus involving the sureties, and what happens after that event affects the company only. … [They] do not and were not intended to operate as a release of any of the obligations of the company’s guarantors. … It is always possible that a debtor, whether a person or a company, will become bankrupt. That is not something inherent in the debt, but it is in most cases the reason why a guarantee is demanded.”
Similarly, in Northern Transportation Co., the Alberta Court of Queen’s Bench adopted the approach in Brown to hold that a s.11.02 stay ought not extend to those who guarantee the debtor’s obligations:
The nature of a contract of guarantee is that the primary debtor will perform his contract and the guarantor has to answer for the consequence of the primary debtor’s default: Schell v. McCallum & Vannatter (1918), 57 S.C.R. 15 (SCC), [1918] 2 WWR 735, at paras 50, 51 Brodeur J. (dissenting).
. . .
In addressing the public policy objectives of the Act to keep the debtor company in operation and to treat the creditors fairly, the Court in Keddy Motors further held at p. 5 that: “[s]uits against guarantors who are principals ought not to have any adverse effect upon the operations of the company; indeed, satisfaction of debts by realization of guarantee should enhance the financial position of the company. The principals — not the company — will suffer the effect.”
We also suggest that a reading of section 11.03(2) of the Act supports the argument that no stay applies. Sureties, of course, will often take guarantees from the directors of the principal company. Section 11.03(2) provides that a section 11.02 stay “does not apply in respect of an action against a director on a guarantee given by the director relating to the company’s obligations”. This accordingly allows the surety to proceed against the directors on the guarantees notwithstanding the stay. We suggest that section 11 ought not be interpreted to shield the surety from claims against guarantees it gives (through bonds) while allowing the surety (by virtue of section 11.03(2)) to pursue the guarantees it has received from the principal’s directors. This, we suggest, would be an inequitable interpretation of section 11, which would lead to absurd consequences.
In the end, where an insolvency above them in the construction pyramid seems possible, subcontractors should do what they can to preserve remedies that do not rely on privity of contract, including claims for lien, hypothecs in Quebec, trust claims and labour and material payment bond claims. Where such a bond claim is made, claimants should consider taking steps to push the claim forward promptly, notwithstanding any stay of proceedings ordered under the CCAA.
The Barrie Construction Association‘s Women in Construction group presented over $2,000 in gift cards and cash along with many toys and personal products they collected for the Women & Children’s Shelter
Cassie Frengopoulos, Shannon Easton, Jeanne Kempffer, Nicole McArthur and Taylorr Martin were all on hand to make the presentation.
#stayinvolved #BCA #WomenInConstruction #gerrittsengineering #georgianwaste #burlingrangercompany #3MCanada #barrie #barrieconstruction #snapdbarrie
From Kennaley Construction Law
This Article is a continuation of our previous Article on gaps, confusion and inconsistencies in Ontario’s Construction Act. Here, we focus on the transition provisions which apply to the Act’s changes effective July 1, 2018 and October 1, 2019. In each circumstance, whether or not the new provisions apply will depend on the interpretation of section 87.3 of the Act, which ties transition to the definition of “improvement”. This has created a fair bit of confusion (as was recently made clear at a meeting of the Construction and Infrastructure Law Section of the Ontario Bar Association).
It is unclear why the drafters of the Construction Act tied s.87.3 to the definition of “improvement”. In their Report Striking a Balance, for example, Bruce Reynolds and Sharon Vogel did not recommend this. Regardless, doing so was not necessary: when the Mechanic’s Lien Act became the Construction Lien Act in 1982, the new provisions simply applied to all contracts entered into after a specified date, without referencing the “improvement”.
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View the presentation here
