Category: Covid-19 Updates

Earlier this year, we wrote about an Ontario court decision on two proposed class actions relating to business interruption insurance claims and business income losses sustained during the COVID-19 lockdown and restrictions.

In a more recent Quebec case, the court was presented with a proposed class action by dentists claiming insurance indemnities as a result of business interruptions sustained during the COVID-19 lockdown.

Proposed Class Action Seeks Compensation For COVID-19 Lockdown

Specifically, the proposed members of class action before the court was described as follows:

“All dentists (whether practicing individually or through a professional corporation),dental clinics, and dental offices situated in the Province of Québec who, as of March 16, 2020, were subject to a contract of insurance with the [the insurance companies] that included “business interruption” or “operating loss” or similar types of insurance coverage…” 

The claimants argued that the interruption of most dental procedures in March 2020 in response to government decrees related to the COVID-19 pandemic entitled them to payments by insurers under all-risks insurance policies. Specifically, they sought compensation for physical damage caused to their workplaces due to COVID-19 contamination. The claimants also argued that they suffered significant business interruption losses as a result of the government shutdown because they saw a reduction in the number of patients at their clinics. 

In response, the insurance companies argued that the claimants had not offered sufficient proof of any material damage or loss to insured property or that the COVID-19 pandemic had caused any such loss or damage. They also noted that any negative effects caused by the pandemic and the resulting government measures on the claimants’ income or profits were not covered under the policies.

The Law on Class Actions in Quebec

In Quebec, authorization for class actions is governed by s. 575 of the Code of Civil Procedure, which reads:

575. The court authorizes the class action and appoints the class member it designates as representative plaintiff if it is of the opinion that

(1)   the claims of the members of the class raise identical, similar or related issues of law or fact;

(2)   the facts alleged appear to justify the conclusions sought;

(3)   the composition of the class makes it difficult or impracticable to apply the rules for mandates to take part in judicial proceedings on behalf of others or for consolidation of proceedings; and

(4)   the class member appointed as representative plaintiff is in a position to properly represent the class members.

As such, the claimants had to prove all four elements to obtain authorization.

Court Refuses to Authorize COVID-19 Lockdown Class Action

The court held that the first, third and fourth elements under s. 575 had been met. 

However, the court refused to authorize the class action based on the second element, finding that the claimants had failed to prove the facts on which to justify the conclusions sought. 

After reviewing the relevant insurance policies, the court first noted that they offered coverage “against loss or damage directly caused to an insured property, by a covered risk”. The court further observed that the risks covered were “all risks of loss or damage to property directly caused to an insured property”.

The court concluded that the claimants had not presented sufficient proof to validate their claims, stating:

“None of these allegations can be seen to provide evidence on the merits that the equipment of dentists in general or of the claimant was directly affected or damaged by COVID-19. There is not a single factual element which suggests that the claimant (or any other dentist) had to suspend the permitted operations (urgent procedures) due to contamination of the equipment or the office.

Obviously, it is clear that this situation generated a loss for the claimant, but is this loss caused by direct damage to an insured property? Does the decree ordering dentists to limit their activities to urgent procedures qualify as a covered loss and, if so, has it affected the insured property?” [translated]

The court answered those questions in the negative. 

Moreover, the court found that the claimants had failed to prove that the pandemic, the COVID-19 virus or any form of contamination had directly caused material loss or damage to the claimants’ insured property. Instead, the court observed that the only allegations relating to pecuniary damages were presented as loss of income caused by reduced business activities, which was not covered by the policies.

Finally, the court stated:

“It follows that the claimant’s claim does not relate to loss of income caused by material loss or damage to her insured property. It is simply a request to be compensated for the loss of income occasioned by the limitation of its activities caused by the operation of the government decree.” [translated]

As such, the court held that the claimants had failed to show an arguable case and refused to authorize the class action.

Contact Bader Law for Experienced Advice On Business Law Matters

The business law lawyers at Bader Lawhave been helping business owners and entrepreneurs in Mississauga and the surrounding areas mitigate their liability and potential risk for over a decade. Our clients range from small family businesses to large operations with millions of dollars in annual revenue, giving us the experience to know how to effectively address the needs of any type of organization.

The business lawyers at Bader Law have been establishing trusted relationships with business owners and entrepreneurs in the Mississauga community for over a decade. We work with each client to develop an effective strategy focused on their specific needs.  When conflicts do arise, we represent clients in a variety of issues and work to find effective and practical resolutions in every situation. To discuss your needs with a skilled lawyer, contact us online or at (289) 652-9092.

Earlier this year, we wrote about a British Columbia Human Rights Tribunal (the “Tribunal”) decision in which a customer’s complaint against a grocery store’s mandatory mask policy was dismissed because she had refused to disclose any health information to support her claim. In that case, the Tribunal had concluded by stating:

“The [Human Rights] Code does not protect people who refuse to wear a mask as a matter of personal preference, because they believe wearing a mask is “pointless”, or because they disagree that wearing masks helps to protect the public during the pandemic. Rather, the [Human Rights] Code only protects people from discrimination based on certain personal characteristics, including disability. This protection is reflected in exemptions to mask-wearing rules for people whose disabilities prevent them from being able to wear a mask or other face covering. Any claim of disability discrimination arising from a requirement to wear a mask must begin by establishing that the complainant has a disability that interferes with their ability to wear the mask.”

Last week, the Tribunal issued a decision on a complaint against Dr. Bonnie Henry, the province’s Health Officer, in which a citizen alleged that the requirement to provide proof of COVID-19 vaccination to access certain services was discriminatory under British Columbia’s Human Rights Code (the “Code”).

Province Introduces COVID-19 Vaccination Proof Requirement 

Beginning on September 13, 2021, the Government of British Columbia now requires proof of COVID-19 vaccination to access various services (the “Services Requirements”). In its August 23, 2021 announcement on the measure, the Government news release stated that:

“A new order from the provincial health officer will require individuals to provide proof of vaccination to access a broad range of social, recreational, and discretionary events and businesses throughout the province. As of Sept. 13, one dose of vaccine will be required for entry to these settings. By Oct. 24, entry to these settings will require people to be fully vaccinated at least seven days after receiving both doses. To enter certain spaces, including indoor ticketed sporting events, indoor and patio dining in restaurants, fitness centres, casinos and indoor organized events, like conferences and weddings, people aged 12 and older will be required to show their proof of vaccination.”

Complainant Lodged Against COVID-19 Vaccination Requirement

Subsequent to the Government’s announcement, a British Columbia resident (“the complainant”) filed a complaint against Dr. Bonnie Henry alleging discrimination in the area of services on the basis of physical disability under s. 8 of the Code. He claimed that the Services Requirements were discriminatory.

In his submissions, the complainant stated that he has asthma, had pneumonia as a child, and “does not want your experimental COVID vaccine.” He further submitted that “[i]n a news conference, it was announced that the experimental vaccine is being made mandatory”, and that he does not want services limited “because of your experimental vaccine”.

Tribunal Refuses to Hear Complaint

At the outset of its decision, the Tribunal noted:

“The Tribunal ordinarily issues its screening decisions by letter. However, since the Services Requirements announcement, the Tribunal has received a large volume of inquiries and complaints alleging discrimination in connection with the pending vaccination requirements. This issue has emerged as one of considerable public interest and concern. In light of the volume of these types of complaints and public interest in this issue, I am publishing this screening decision.”

The Tribunal then explained that to establish discrimination a complainant must prove: 

1. That they have a characteristic protected from discrimination; 
2. That they have experienced an adverse impact in a protected area; and 
3. That the protected characteristic was a factor in the adverse impact.

In the present complaint, the Tribunal held that the complainant’s asthma could constitute a physical disability, which is a protected characteristic under the Code.

However, moving onto the second requirement, the Tribunal found that the complainant had not alleged facts of having experienced an actual adverse impact, stating:

“At best, the Complainant references a prospective adverse impact, not one that he has actually experienced.”

As such, the Tribunal held that without proof of an actual adverse impact related to a service, facility or accommodation customarily available to the public, the complaint could not constitute a breach of the Code. 

The court then observed:

“Before concluding, I note that it is not enough to prove discrimination to have a protected characteristic and have experienced an adverse impact: there must be a connection between the two. The person making the complaint must establish that connection. Here, even if the Complainant had outlined an adverse impact, such as being denied a service because he was not fully vaccinated against COVID-19, he would then have to allege facts that could establish a connection between having asthma and not being fully vaccinated, such as his disability preventing him from being able to get vaccinated. An ideological opposition to or distrust of the vaccine would not be enough.”

In the result, the Tribunal therefore refused to allow the complaint to proceed.

Get Help

The business lawyers at Bader Law have been establishing trusted relationships with business owners and entrepreneurs in the Mississauga community for over a decade. We work with each client to develop an effective strategy focused on their specific needs and will create custom agreements designed to avoid conflict and mitigate risk.  When conflicts do arise, we represent clients in a variety of issues and work to find effective and practical resolutions in every situation. To discuss your needs with a skilled lawyer, contact us online or at (289) 652-9092.

A recent Ontario court decision offers some insight into claims being made by businesses in relation to losses sustained as a result of the COVID-19 pandemic that will be making their way through the courts in the near future.

This recent decision addressed two proposed class actions and 17 individual actions that have been launched against a number of insurance companies, all of which relate to business interruption insurance claims and business income losses sustained during the COVID-19 lockdowns and restrictions. 

What Is Business Interruption Insurance?

Traditionally, with business interruption insurance, a business owner can claim coverage under the relevant policy to collect the income he or she would have expected to generate were it not for the unexpected event, such as a flood, fire, earthquake, etc.

However, the coverage that can be claimed will depend on the policy itself. For instance, with a named perils business interruption policy, the types of perils that caused the losses that may be claimed will be specifically listed in the insurance policy. Alternatively, an all risk policy will provide protection against loss caused by risks that are not specifically excluded from the policy.

Insurance Companies Seek to Stay Individual Claims

In the present case, the individual actions had been brought after the insurance companies had denied coverage for their COVID-related “business interruption” claims. The claims were brought by the owners of small businesses, who mainly operated dentist and physiotherapist practices.The damages alleged in each action ranged from $250,000 to over $3 million.

Four of the defendant insurance companies brought a motion to stay the individual actions until the certification of the related class action had been decided. 

Legal Principles for Staying Individual Claims

As explained by the court, under s. 13 of the Class Proceedings Act, a court has jurisdiction to stay any proceeding related to a class proceeding before it, on such terms as it considers appropriate.

Generally, an individual action may be temporarily stayed pending the certification of a proposed class action if the following four prerequisites are satisfied: 

(a) there is substantial overlap of issues in the two proceedings; 

(b) the two cases share the same factual background; 

(c) issuing a temporary stay will prevent unnecessary and costly duplication of judicial and legal resources; and 

(d) the temporary stay will not result in an injustice to the party resisting the stay.

Business Owners Offer Testimony About COVID-19 Losses

As part of the proceedings, several of the individual business owner claimants offered testimony about their losses during the pandemic and their desire to pursue individual claims over the class action. One of their statements explained:

“I am not interested in a class proceeding because I want to retain the ability to make my own decisions about the prosecution of my action. In particular, I want the ability to direct any settlement negotiations and approve any proposed resolution of my claim.

The COVID-19 pandemic has been hard for the Clinic and for me personally. Before all of this happened, my business interruption insurance policy from Intact gave me peace of mind. But Intact has denied my claim, and they have made no offer of settlement. I am tired of waiting for Intact to do the right thing, and I want my claim prosecuted quickly. It would really help to recover my COVID-19-related losses.

I do not want litigation hanging over my head for years, and distracting me from my personal and professional obligations. I did not ask for a lawsuit. It was only necessary because Intact refused to pay my claim. But the money will be most useful now, while the Clinic is still trying to recover financially from the impact of COVID-19. I do not want to wait for money that should already be back in my business.” 

Court Allows Individual Claims to Proceed

In its analysis, the court noted that its decision would turn on the fourth prerequisite for the stay, namely the injustice or prejudice to the individual plaintiffs if their actions were stayed pending certification, as it had determined that the first three prerequisites had been satisfied.

Noting that all claimants had  sustained significant “business interruption” losses, the court stated:

“These are well-informed individual litigants pursuing individual actions for legitimate reasons — they believe they have substantial insurance claims, they have established the need for speedy judicial determinations, they want control over all aspects of their lawsuit including any settlement discussions and they desire to work with counsel of their choice.”

The court then observed that the COVID-19 restrictions and lockdowns continued to decimate Canadian business and the class actions involved “real people sustaining real harm in real time”. As such, the court opined that it was important for both the class actions and the individual claimants to obtain legal determinations as quickly as possible. 

Finally, the court found that the insurance companies would not be harmed by allowing the individual claims to proceed, while the same could not be said for the individual claimants, stating:

“If the individual actions are stayed, the plaintiffs will suffer real injustice and prejudice. […] 

In sum, the defendant insurers have not cleared the “no injustice or prejudice” hurdle. In my view, the requested stay would result in significant unfairness to the individual litigants who have obviously chosen not to participate in the class action and who wish to prosecute their claims expeditiously.”

In the result, the court therefore dismissed the insurance companies’ motion for stays of the individual claims. As such, the individual claimants could proceed with their court actions.

Get Help

The business law lawyers at Bader Lawhave been helping business owners and entrepreneurs in Mississauga and the surrounding areas mitigate their liability and potential risk for over a decade. Our clients range from small family businesses to large operations with millions of dollars in annual revenue, giving us the experience to know how to effectively address the needs of any type of organization.

The business lawyers at Bader Law have been establishing trusted relationships with business owners and entrepreneurs in the Mississauga community for over a decade. We work with each client to develop an effective strategy focused on their specific needs.  When conflicts do arise, we represent clients in a variety of issues and work to find effective and practical resolutions in every situation. To discuss your needs with a skilled lawyer, contact us online or at (289) 652-9092.

The provinces of Saskatchewan, British Columbia and Alberta have all introduced legislation that provides employees paid leave to receive a COVID-19 vaccination. In each province, the relevant legislation specifically provides employees with paid time off to obtain one or both COVID-19 vaccination doses. In all three provinces, employee are entitled to up to three paid hours. 

What about Ontario? The answer lies in the recently introduced COVID-19 paid sick leave legislation.

What Is Ontario’s COVID-19 Paid Sick Leave?

On April 29, 2021, Ontario introduced amendments to the Employment Standards Act (the “Act”) to provide Ontario employees with a temporary paid sick leave relating to the COVID-19 pandemic, following mounting public pressure. 

Specifically, s. 50.1 of the Act was amended to provide for up to three days of paid sick leave for reasons relating to COVID-19, in addition to the unpaid COVID-19 leave that was introduced in 2020. The leave entitlement was made retroactive to April 19, 2021 and will end on September 25, 2021.

Under the amended legislation, employees are entitled to take up to three days paid leave and the employer must pay them the wages they would have otherwise earned, up to a maximum of $200 per day.

Employees must give notice of their intention to take the leave, although the legislation does not set out any specific notice period. Where an employee took the leave before advising the employer, the employee must do so as soon as possible.

The employer may ask for reasonable evidence that the employee is entitled to take the leave, although no other specifics are provided. However, the legislation does state that an employer cannot ask the employee for a medical certificate.

The legislation was also amended to add s. 50.1.1, which provides a mechanism for employers to obtain reimbursement for the paid leave. In order to obtain reimbursement for paying the COVID-19 paid leave to an employee, the employer must submit an application, along with the required documentation, to the Workplace Safety and Insurance Board. Where the employer meets all the specified criteria, the Board will reimburse the employer directly for the paid leave.

It should be noted that where an employment contract already provides for a similar leave, the leave under the contract will subsume the legislative leave.

Finally, it’s important to mention that this leave is only available to employees covered by the Act, which means that it does not apply to independent contractors or federally-regulated employees.

Does the COVID-19 Paid Sick Leave Cover Vaccinations?

The answer is: yes.

While Ontario does not have a separate leave specifically for vaccinations, the government website specifically states that vaccinations are covered by the COVID-19 paid leave. The government website lists the following situations as examples of what would entitle an employee to the paid leave:

• Going for a COVID-19 test;
• Staying home awaiting the results of a COVID-19 test;
• Being sick with COVID-19;
• Getting individual medical treatment related to COVID-19;
• Going to get vaccinated;
• Experiencing a side effect from a COVID-19 vaccination;
• Having been advised to self-isolate due to COVID-19 by an employer, medical practitioner or other specified authority;
• Providing care or support to certain relatives for COVID-19 related reasons, such as when they are sick with COVID-19 or have symptoms of COVID-19 on the advice of a medical practitioner or other specified authority.

Employers and employees should be aware, however, that where an employee only takes part of a day as paid leave, they are deemed to have taken a full paid day of the COVID-19 leave. 

Finally, it should be noted that employees who take both a paid and unpaid COVID-19 vaccination leave must be paid for the three days in priority to the unpaid leave. 

Get Help

At Bader Law in Mississauga, we have been advising business owners on employment law matters for over a decade. We help businesses of all sizes and across all sectors. Our clients range from small family-owned services companies to medium-sized software, technology, manufacturing, and industrial service enterprises with more than one hundred employees and annual revenues exceeding $50 million across multiple jurisdictions. We are proud of the long-lasting relationships we have built with many businesses for whom we act as in-house counsel on employment issues providing timely and practical legal advice to human resource professionals and business owners.

The highly knowledgeable employment lawyers at Bader Law regularly assist business owners and entrepreneurs in complying with their legal and financial obligations towards employees and workers and managing possible risk and liability. We can advise on stand-alone issues as they arise or be on-call to regularly guide and advise you throughout the lifetime of your venture. Contact us online or at (289) 652-9092 to learn what we can do for you and your business.

In a recent British Columbia Human Rights Tribunal decision, a customer’s complaint against a grocery store’s mandatory mask policy was dismissed because she refused to disclose any health information to support her claim. 

While this decision comes out of British Columbia, as one of the first of its kind in Canada, it may provide guidance to businesses across the country in anticipation of similar potential challenges.

Customer Files Complaint Against Grocery Store’s Mask Policy 

On September 28, 2020, the customer went into her local grocery store and was stopped by security because she was not wearing a mask. The security guard told her that the store had enacted a mask-wearing policy and she could put one on or leave.

The customer told the store security guard that she was exempt from wearing a mask because they “cause health issues”. When the guard insisted that she tell him what those health issues were, the customer told him they were private. The customer then told the guard that there were exemptions for health matters, that there was a duty to accommodate, and that health matters or disabilities were covered under British Columbia’s Human Rights Code. She further explained to the guard that masks cause breathing difficulties, and she was therefore exempt. 

Despite her claims, the guard stood firm on her having to wear a mask or leave. The customer decided to leave the premises.

Subsequently, the customer filed a complaint with the British Columbia Human Rights Tribunal alleging that, in requiring that she wear a mask, the store had discriminated against her based on physical and mental disability, in violation of s. 8 of the Human Rights Code. She contended that the guard had not stated that the mask-wearing policy was necessary for public safety, and that, at the time, the government had not mandated masks in stores. Rather, it was a policy that the store had instituted independently. She claimed that the store had a duty to accommodate and that the “sudden and arbitrary decision to force customers to wear masks” was discriminatory. She alleged that the policy was “pointless” and discriminated against people with health issues. Finally, she argued that people should not have to give out personal health information to buy daily essentials.

Because the decision was a preliminary screening, the store had not been notified or asked for submissions on the complaint.

Tribunal Refuses to Hear Customer’s Complaint

At the outset, the Tribunal noted that it had asked the customer to provide more information about the nature of her alleged disabilities and how they related to her inability to wear a mask. In response, the customer had claimed that masks made it difficult to breathe and caused anxiety, but had refused to disclose any information about having a specific mental or physical disability. Instead, she had reiterated that she regarded health information to be a private matter that should not be disclosed to government bodies, including the Tribunal. 

After reviewing the complaint, the Tribunal held that the customer had not set out a possible contravention of the Human Rights Code. While the customer had established an adverse impact regarding a service, wherein which she was not allowed to enter the store unless she wore a mask, the Tribunal held that she had not set out facts that could establish that she had a physical or mental disability that had been a factor in the adverse impact.

The Tribunal then stated:

“The Code does not protect people who refuse to wear a mask as a matter of personal preference, because they believe wearing a mask is “pointless”, or because they disagree that wearing masks helps to protect the public during the pandemic. Rather, the Code only protects people from discrimination based on certain personal characteristics, including disability. This protection is reflected in exemptions to mask-wearing rules for people whose disabilities prevent them from being able to wear a mask or other face covering. Any claim of disability discrimination arising from a requirement to wear a mask must begin by establishing that the complainant has a disability that interferes with their ability to wear the mask.

In this complaint, the Customer refuses to say whether she has a disability. She simply says that wearing a mask makes it “very difficult to breathe” and “causes anxiety”. This explanation, on its own, is not enough to trigger the protection of the Code.”

While the Tribunal agreed with the customer that any disclosure of health information should be minimal and strictly limited to the purpose for which the information is required, it explained that where a person is asking for human rights-related accommodation, that individual is required to bring forward the facts relating to discrimination. As such, the Tribunal explained that the customer’s refusal to explain whether she had a disability, and how that disability impacted her ability to wear a mask, resulted in a failure to set out facts which could, if proven, establish discrimination. 

In anticipation of future similar complaints, however, the Tribunal did take note of the BC’s Office of the Human Rights Commissioner’s recommendation, which set out as follows:

“Where the relationship is brief, I recommend duty bearers accommodate those who are unable to wear masks without requiring them to provide medical information, as this is sensitive personal information.”

In the result, the Tribunal refused to proceed with the complaint.

Get Help

The business lawyers at Bader Law have been establishing trusted relationships with business owners and entrepreneurs in the Mississauga community for over a decade. We work with each client to develop an effective strategy focused on their specific needs and will create custom agreements designed to avoid conflict and mitigate risk.  When conflicts do arise, we represent clients in a variety of issues and work to find effective and practical resolutions in every situation. To discuss your needs with a skilled lawyer, contact us online or at (289) 652-9092.