Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

This is our fifth and last lecture on the topic of claiming refunds for your summer camps that have been cancelled or for your airline tickets that have been cancelled due to covid-19.

We begin with our usual disclaimer that this lecture is not legal advice. If you have any specific questions, you should contact a lawyer or paralegal or the Law Society of Ontario if you’re in Ontario or another provincial law Society.

Now in this lecture series:

The first lecture was about the underlying legal principles that would apply to the breach of contract.  We explained that those principles would apply to all kinds of different scenarios of breaches of contract;

Lecture two was about some of the defences to those breaches of contract;

In the third lecture, we applied those legal principles to summer camps.  We took the specific example of STEM Camps, which is a camp in Ontario that has been in the news lately for not providing refunds to all the people who had signed up their children for their camps.

In the fourth lecture, we talked about how you get your credit card payments reversed – by contacting your credit card companies.  If, you were not able to have those payments reversed then we said that we will talk about going to court.

This lecture is about the situation when you have tried everything. When you have tried to reverse the payment and you were not successful, now you’re ready to go to court.

How do you go about doing that? We will explain this in three simple steps.

• Step number one, is you should estimate your damages and we’ll talk about why you need to do that;
• Step number two, you have to determine which court or tribunal has the jurisdiction to deal with your matter; and, then
• Step number three is you go ahead and commence your legal proceeding.

For estimating damages, your starting point is that you should review the contract itself—the invoice, the contract that you have with your summer camp, because it may have certain clauses that deal with damages and with refund.  You want to understand what those clauses are, because those clauses may determine what kind of damages, you are able to get or may limit those damages in certain circumstances.

In certain circumstances if the clauses are not favorable to you, you may be able to challenge those clauses. But that will depend upon the circumstances of those clauses and the application of the law. But, fundamentally, your case is about seeking the refund of the monies that you have paid to your summer camp or to your airline.  And you want that refunded.

There may be additional damages in your circumstances.  These are called incidental or consequential damages. We will not get into a full lecture about what those damages are but fundamentally because of the breach of contract by the other side, you now have incurred additional damages. It could be for instance, that you had to find another comparable summer camp for your child, for the same duration and that summer camp may have cost you more than the one that you had initially signed up for and that may amount to your additional damages. That could be one scenario.  But there could be other scenarios.

You determine whether you are claiming any additional damages.  You consider that.  Then you think about the conduct of the other side. Whether such a conduct would entitle you to punitive damages? Now keep in mind, punitive damages are not easily awarded by courts. Punitive damages are essentially for conduct, which is extremely high ended, which is very egregious and in those cases the court may consider that penalizing the defendant, is an appropriate remedy and you may be entitled to punitive damages.

You would also like to consider whether there are any damages arising from any other causes of action in your case. This is in addition to breach of contract. For example, was the conduct of the other side in bad faith and could that entitle you to any damages? Could the conduct amount to fraud, misrepresentation, etc.? You will consider other causes of action. Generally, just to determine what is the scope of damages that you may be seeking from the court – but if it is only the refund of the monies that you have paid then your case is pretty straightforward in that regard.

Once you have determined your damages you have estimated your damages, you would like to figure out which court or tribunal you have to go to get those damages.  Again, your starting point is the contract. You would like to review your contract, to see if it has any clause with respect to jurisdiction. Now with respect to summer camps, I highly doubt that those contracts would have clauses with respect to jurisdiction of courts or tribunals or arbitration clauses. But they may.  It’s a good thing to look at the contract, because the contract may very well have a clause that says that parties in case of dispute will not go to court, but will go to a private arbitration.  In that case, you may not have the right to go to court and have the matter adjudicated before the court. It is important to consider that.  But, if there are no such clauses, then of course a court or a tribunal may have the jurisdiction in that case. In Ontario, if the matter is for $35,000 or less, then small claims court has the jurisdiction to deal with your matter.  In most of the summer camp matters or for the air travel matters, we believe that Ontario small claims court will have the jurisdiction. But, again, you will have to figure out which court or tribunal has the jurisdiction or an arbitral body has the jurisdiction before you commence your legal proceeding.

Once you have determined the jurisdiction, then the next step is, obviously, that you go ahead and commence your legal proceeding.  For the proceedings, you go to the specific court and obtain the necessary forms that you need to complete, to commence your proceedings. I have provided the link here for Ontario Small Claims Court. All the forms are available online for free. You download form 7A and you fill that out, which is the plaintiff’s claims form, you fill that out. You gather all the evidence and you will attach all evidence with form 7A (in Ontario) and that will be your complete package which will be the claim.

 In Ontario you can issue the claim online, I have provided this link and it’s not a complicated process. You go to this link. You create an account which is free. You create that account and then once you’re logged in, you provide / you input some basic information about your address and name and the name of the other party and then you upload all of your documents which is form 7A and all of the evidence. You attach all of that together into a PDF document. You upload it and then you pay the fee.  I believe it is $102 in Ontario, to issue your claim and so you pay the fee through your credit card and then your claim is issued.

You will receive an issued claim within a few minutes by email and that claim—issued claim will have a court stamp on it. It will have a court file number, which will confirm that the claim is issued.  Once you have this claim, you print it out and you serve it on the defendant.

The process is not complicated, if you have to issue a claim in small claims court. I have a number of lectures.  If you go on the playlist, you will find there’s a playlist for Civil Procedure. There are a number of lectures there. I also have an online course, which is a paid course, on youcounsel.ca. It has 26 lectures on issuing a claim in small claims court—from the time you issue the claim, all the way to trial. By all means you can check that out.

Hopefully, you will not need to go to court to get your monies refunded and you will be able to get that reversed through the process of using the credit card companies.

Thank-you for watching.

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

If you are a Canadian who is stranded abroad due to the Covid-19 pandemic and is in need of an emergency loan, this lecture is for you. The Canadian government has arranged for an emergency loan for such Canadians and we will explain the eligibility criteria for such loans in this lecture.

This lecture is not legal advice.  If you have any specific questions, you should contact a lawyer or a paralegal or the Law Society of your province.

We’ll cover four topics. 

• The amount of loan that is available under this program.
• What is the purpose of the loan?
• How do you become eligible? And,
• How do you go about applying for such a loan?

• The total amount of loan is up to $5,000 per person. Usually it is returnable within six months after you have returned to Canada. But it may differ depending upon your circumstances.  Keep in mind that this is a loan and you will have to pay this loan back to the Canadian government.
• The purpose of the loan is that while you are making efforts to return to Canada, you may have some essential needs that you need money for.  These would include food, shelter, medical costs, hospital cost—those medical costs that are not covered by the local health agencies; transportation and airline tickets to return to Canada. In some countries, I know that the Canadian government has arranged for charter flights for people to return to Canada.  Obviously, there’s a cost for those flights.  If you’re unable to afford those costs, then you can apply for this loan to return to Canada. If you have expenses for your immediate family members—which is a spouse, parents, children—then that can be included in the same application for this loan.

It is important that you provide as much details of your expenses as possible and attach all documentary evidence associated with those expenses. If you are paying for hotels, make sure to provide invoices for hotels, if it’s medical costs for hospital and stuff—make sure that you provide the documents for that kind of information. The more information you provide, the easier it will be for you to get the loan and the faster it will be for you to get the  loan.  If there is information that is incomplete, then the Canadian government representative, who will be dealing with your application, will have additional questions and then you will be responding to those before your loan is approved.

• What about the eligibility criteria? Obviously, you have to be a Canadian citizen. For permanent residents, it is possible to get the loan—but in exceptional circumstances.  The exceptional circumstances are if you are a permanent resident and your life is threatened or you are in danger of experiencing some serious harm, then you may be eligible for the loan. But, essentially, it is for Canadian citizens.  Those are Canadian citizens who are actually planning to return to Canada and their existing plans have been disrupted.

There must be this component that you were intending to return to Canada.  For that you will have to provide a copy of a confirmed travel itinerary, showing your intention to return or if you were traveling as a tourist, then you must show your temporary foreign visa with a clear end date—so that it is confirmed that you were originally intending to return to Canada.

If you were working abroad and you’ve lost your employment and you intend to return to Canada that will not be considered a valid ground for this loan. If you had travelled abroad on a one-way ticket, then, that will not be sufficient to establish intention to return to Canada. It is important for you to establish that you were all along planning to return to Canada and you were unable to do so because of the travel restrictions relating to Covid-19 or because of your circumstances relating to Covid-19. 

You also need to show that you have no other source of funding to return home. For example, you do not have sufficient credit available to you through your credit cards or line of credits. You do not have any insurance that can cover your return cost or the cost while you’re trying to return.  You have no sources or friends and family. You have to state that in your application and in your email that you have tried all these sources and you’re not able to get any funding from any of these sources.

• If you’re eligible how do you go about applying? You can send an email, to this email address: can.finances.cv19@international.gc.ca.  You can contact Global Affairs Canada on +1-613-996-8885—there are collect calls available—if you are able to make calls from there.  You can contact 24/7.  Or, you can reach out to the nearest Government of Canada office and then ask for assistance. I’ve provided the link for different embassies and consulates, around the world that you can find out if you are unfamiliar with their contact information.

Once you apply, please note, that it may take several days. It is not like CERB that the money will immediately come to you. It may take several days and the representative who may be dealing with your loan application may have additional questions that you should be able to answer.  Once all of those things are addressed, then you should be able to get your loan.

Hopefully, this gives you some information if you are in need of such money, then you are able to get some emergency loan.  Once you have returned to Canada and if you qualify for Canada Emergency Response Benefit, then you may apply for those and get those benefits.

Thank-you for watching.

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

Three days ago, on May 29th 2020, the Ontario government made certain changes to Employment Standards Act under its regulation called Ontario Regulation  280/20 which temporarily takes away certain important rights that employees had previously during the Covid19 emergency. What are those changes? What are those rights that have been taken away?  We will briefly explain that in today’s lecture.

We begin with our usual disclaimer, that this lecture is not legal advice. If you have any specific questions, you should contact a lawyer or a paralegal or the Law Society of Ontario if you require a referral to a lawyer.

There are two kinds of changes. One is that employers have a right now to reduce or eliminate the employee’s hours; and then, the second is that the employer has the right to reduce employee’s wages. The third thing that I want to mention is that the common law rights of employees are intact. These are rights, under the Employment Standards Act. But the common law rights are intact, but let’s explain what does this all mean.

Let’s begin with the reduction or elimination of hours. This is the link for the regulation I’ve provided (https://www.ontario.ca/laws/regulation/200228?search=regulation+228%2F20).

I will also provide it in the description of this lecture, so you can visit this regulation and understand it in more detail. First of all, what you want to understand is that these changes that have been allowed are for the duration of Covid19 emergency, plus 6 weeks. The day when the emergency is considered terminated, for an additional six weeks, the employers will have these rights available, and they start from March 1st 2020. They continue until the emergency is ongoing.  Once the government announces that the emergency has ended, then beyond that for six more weeks the employers do have these rights to reduce or eliminate an employees’ hours. The reduction or elimination of hours must be related to Covid19. How do you go about determining whether an employer’s reduction or elimination of hours is indeed related to Covid19—that is anyone’s guess? But, that is one of the requirements.

Secondly, the most important part you want to understand is that employer has this unilateral right, now, to reduce or eliminate any employees hours.  Prior to that—if you understand a little bit of employment law rights—if you were entitled to let’s say 40 hours per week of hours in your employment and if the employer wants to reduce your hours to 30 hours or 25 hours you will have to agree to that reduction of hours. If you do not agree to that, then you get into a situation called constructive dismissal. You are ordinarily allowed to go file a complaint with the Ministry of Labor or commence a court action in court and then you will be able to get compensation on that basis.

This unilateral change is allowed. This means that the employer is not required to seek an approval agreement from the employee. Employer can make those changes unilaterally.  What the changes, what the regulation indicates is that because of that change the employee no longer has a right to claim constructive dismissal under the Employment Standards Act. Previously you did have that right, if you were an employee.  Now you no longer have that right to claim constructive dismissal under Employment Standards Act during this time period.

If you file a complaint, obviously you should not file a complaint because you do not have the right to do so now—but if you do file a complaint with the Ministry of Labor on this issue on the reduction or elimination of hours not any other issue, then under the Regulation, it specifically states that it will be considered that no complaint has been filed.  So, the assumption is that you cannot file the complaint.

The only saving grace here is that if your hours are completely eliminated then, you still have a right to reinstatement at the end of the emergency plus 6 weeks. Your job is still intact even though you’re not earning any money because your hours are either eliminated or reduce money because your hours are reduced, but you still have a right to reinstatement. However, if your position is completely eliminated at the end of the emergency period plus 6 weeks, then obviously you don’t have a position to go back to and then in that case your employment is terminated and at that time your termination rights will be triggered.

Similar principles apply to reduce wages.  The employer, now (during Covid19 emergency plus 6 weeks) can, on grounds related to Covid19, reduce an employee’s wages unilaterally. Again it’s a unilateral change. If you earn $20 an hour and if the employer decides to reduce your wages to $14 or $15 an hour, as long as it is not below the minimum wage, the employer can do that.  It does not require your approval.  Similarly you cannot claim constructive dismissal under the Employment Standards Act. You cannot go to the Ministry of Labor and file a complaint because, again, the complaint will be considered not filed. Again if your wages are 0, that means you had no hours, you still have a right to the reinstatement unless your position is completely eliminated in which case your termination rights will be triggered at that time.

Now I mentioned that the common law rights are intact. If you understand a little bit about the regime of different kinds of entitlement for employment law in Ontario and if you have listened to any of my previous videos or watch the lectures you would know that you could have rights under Employment Standards Act and you could have rights under common law which are enforced by the court. If you are pursuing your rights under the Employment Standards Act, then you go to Ministry of Labor.  There is no cost for you.  You filed a complaint to the Ministry of Labor.  An inspector gets appointed. He or she will investigate and make a decision. There isn’t really any burden on you other than filing a complaint with the Ministry of Labor and then they will take over and look after that matter.

But there is a limitation with respect to those kind of complaints, because Ministry of Labor’s complaints are within the four corners of the Employment Standards Act and nothing beyond that.  If it is a common law dispute they do not even have the power or jurisdiction to deal with that matter. These changes are relating to Employment Standards Act. It is relating to the Ministry of Labor’s power so Ministry of Labor now under Employment Standards Act, cannot give you those rights for constructive dismissal for reduction of your wages or reduction of hours. But you can still go to court because under common law rights if there is a reduction of wages or reduction of hours and that is unilateral then you can claim constructive dismissal under common law and you may be entitled to damages. Those rights are still intact.

The takeaway from all of this is that the indication from the Regulation is that this loss of rights is temporary.  It is only during Covid19 emergency plus 6 weeks.  The idea, I believe, is that if you were temporarily laid off and your termination rights are triggered because of the original Employment Standards Act, not the one that has now changed, then it would have triggered your rights for termination and severance pay and that would have caused significant burden to the employer, who now has to run the business despite all the challenges of Covid19 and payout the termination and severance payments to various employees.

The government in this situation, what they’re thinking behind all of this is that allow the employer some breathing space so they can continue to operate. But the problem is that while allowing the employer breathing space this is taking away significant rights from employees and so their rights are affected. The only part that you want to keep in mind is that only the rights under the ESA are affected, common law rights are not affected.

What is the impact of this?  There is a disproportionate impact on low wage earners because higher wage earners who have the capacity to hire a lawyer and go and file a claim in courts may still be able to go and apply for their common law rights and get those rights given to them through the courts. However, for low wage earners it is harder for them to retain lawyers and therefore the impact – the negative impact of this, is the low wage earners who would previously go to Ministry of Labor to have these rights enforced, do not have any venue now to enforce these right. We will keep you updated on any further changes as they come along.

Thank-you for watching.

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

As you know, many students were not eligible to receive $2000 a month under Canada Emergency Response Benefits, because of the specific conditions that many students were not able to meet. Today (April 22, 2020), the Canadian Government has announced specific benefits for students. What are those benefits? We will discuss this in today’s lecture.

We begin with our usual disclaimer that this lecture is not legal advice.  If you have any specific questions with respect to these benefits, please contact Canada Revenue Agency, as Canada Revenue Agency will be issuing and dealing with these benefits.

In today’s lecture, we will talk about the Canada Emergency Student Benefit (CESB), which is the title of this kind of benefit. We’ll talk about the ability for students to earn additional income through volunteering.  We will talk about receiving payment from multiple sources and how that will be treated by CRA.  We will explain what happens to student service grants that have been issued to eligible students.  And we will talk about the student loan payments that may be paid to different students. With respect to Canada Emergency Student Benefit the amount that a student can receive is $1,250 per month. Now that amount could increase up to $1,750 per month, if the student is caring for a dependent or if the student has some sort of a disability.

Who will be eligible for Canada Emergency Student Benefit? Post-secondary education students who are currently enrolled in a post-secondary program, students who will be starting school in September of this year, students who have already graduated in December of 2019 from school—they will also be eligible and then any of these students who currently have a job but are making less than $1000 a month—they are also eligible to receive these benefits.

Let’s talk about volunteering. If a student is volunteering in certain programs, then that student could earn from $1,000 to $5,000 a month—that will depend upon the number of hours that student is working. This is not a paid job but volunteering and because of volunteering, the government will make some monthly payments to students.

What are some of the volunteering opportunities?  You could volunteer in programs for national service or any community service programs and you should, if you’re interested, you should see different government websites for those opportunities.  One of the examples I’ve posted here, I’ve posted the link and I will also post it in the description below this. Volunteering opportunity with respect to Covid-19 response was posted by Public Service and I believe the applications are due in two days, I believe by April 24^th.  So if you’re interested in any of these volunteering opportunities, then you should apply online. But there will be many other volunteering opportunities that may be posted by the provincial government or federal government. By all means check those out and see if you are able to volunteer and then earn additional income, because of that volunteering.

Now with respect to jobs, the government has indicated that it is going to create about 76,000 jobs for students and those jobs will be focused primarily in essential services. For example food service, health sector, community service organization—very similar jobs to what ordinarily students perform during the summer except that jobs such as organizing festivals and organizing camps and stuff—those jobs will not be available.

Let’s talk about how government will treat payment from multiple sources. For example, if you’re a student who already has a job and is earning less than $1,000, then as I mentioned earlier you could apply for Canada Emergency Student Benefit and then you will get $1,250 or, maybe, up to $1,750 if you are caring for a dependent or you have a disability.  So you will keep both payments. The less than $1,000 a month of your salary plus $1,250.  Then on top of that if you’re able to volunteer for certain positions, depending upon the hours that you work, you may be able to earn additional income. Depending upon your circumstances and your ability to undertake all of these activities, a student can earn a significant amount of money up to about $7,000 or so with respect to this work. All of this is essentially the government’s way of incentivizing students to occupy themselves during summers—whether it’s through a job, through volunteering, upgrading their skills and what not and they may be able to earn some income while doing so.

Let’s talk about student service grants. The government has simply doubled the service grant to eligible students.  Eligibility is the same. If you were a full time student, you could get up to $6,000 in grants and if you’re a part-time student you could get up to $3,600 in grants. With respect to student loan payments, the government has increased the maximum weekly payments that you could have gotten through student loans.  Previously it was $210 and now it is $350.

If you are a student who was not previously eligible for CERB, hopefully you will be able to benefit from these different kinds of benefits that have been announced by the government today.  Legislation will be coming.  It is being drafted and will be coming into effect soon.  Once the legislation is out we will have more information and we will post another lecture at that time.

Thank-you for watching.

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

This is our 4th lecture on claiming refunds in Canada, for your summer camp payments and airline tickets that have been cancelled.

We begin with our usual disclaimer that this lecture is not legal advice.  If you have any specific questions, you should contact a lawyer or a paralegal or the Law Society of Ontario.  If you are in another province or territory contact your Law Society for a referral to a lawyer or a paralegal.

In this lecture series we have already provided three lectures.

Lecture 1, talked about the underlying principles which would apply to most breeches, especially with respect to Covid-19.

Lecture 2, talked about some of the defenses that could be raised for that breach of contract to avoid liability.

Lecture 3, we applied the legal principles to summer camps and we took the example of stem camps, because we had more information and showed how these legal principles will apply and enable you to seek refund for your monies, that you have paid to your summer camps.

Now once it is confirmed by you that you are entitled to refund, then how do you go about reversing that credit card payment. This applies only to credit card payments. If you had made payment by credit card, how do you go about reversing that payment which is called charge back, by contacting the credit card company? This lecture will explain that process. These steps are simple.  Please listen to it carefully and follow those steps.  Finally, if all of these efforts fail, then you may be able to go to court and seek your claim under a court process.

With respect to the charge-back, there are two simple steps.  One is that you will contact the merchant with respect to the refund and second is that you will contact the credit card company for charge-back. When you contact the merchant, the first thing you need is the confirmation that the services that you had paid for are not being provided or have been cancelled. In case of summer camps, you need some sort of confirmation that the camps will not be opened and you will not or your child will not receive camp services. If you are claiming charge-back for a specific product, then you have to some proof that the product was not delivered to you.

You require that confirmation.  You can obtain that confirmation by a variety of means. You can contact, if you do not have that confirmation, you can contact the merchant, contact your camp and have that confirmation by email or text message or any other documentary evidence, that you could gather and obtain that confirmation. Once you have that confirmation, then you are obligated to attempt to resolve your dispute directly with the merchant. That is one of the conditions that credit card companies require—for you to at least attempt to resolve this matter. 

You contact the merchant/contact the camp provider and ask for the refund. You state that you are entitled to refund because they are no longer providing the service and you require your full refund based on the terms of your contract.  If the merchant says no, merchant is not going to provide you the refund, then you make sure that you have that evidence handy, because you will need it for the credit card company. But trying to resolve the dispute with the merchant is essential. You need to have made good-faith effort to do so.

Some of the tips to keep in mind when you are corresponding with the merchant: The first thing is document, document, document. You need to make sure that you keep all kinds of documentary records, because you may need them as evidence. In fact you will need them as evidence for the credit card company, when you’re asking for charge-back. If there are any emails, text messages, online postings, facebook postings, twitter postings, online interviews, whatever you can gather that can confirm that the service has been cancelled or the product is not delivered and that can confirm that the company, the summer camp has refused to refund the monies—all of that evidence you will need, so make sure you keep all documentary evidence. If you are having a phone conversation, with the merchant make sure to record phone conversations and keep extensive notes if you can. At all times, please remain polite and professional and keep your records.

Let’s go to step 2. Now you have tried to resolve this dispute with the merchant directly and the merchant is still not willing to give you the refunds. Then you now have to contact the credit card company. You will be contacting the credit card company’s dispute resolution department. You can start your call by calling the number on the back of your credit card.  That is a general number that will take you to their general customer service. What you want to do is you want to get transferred to the dispute resolution department, because remember that the general customer service line, the agent on the other side may not be capable of dealing with the dispute issue that you are bringing forth, especially the charge-back. You would like to be transferred to the dispute resolution department or at least confirm from that person that, that person is a qualified specialized person dealing with the dispute resolution process.

Because I contacted RBC Visa, I have their direct number for the dispute resolution department which is 1-877-717-2377. The advantage is if you call this number: A) the waiting time period, will be much less than the general line, you will be able to get to an agent quickly; and, B) secondly you will be talking to an agent who is qualified and who has expertise in dealing with these disputes. You will have less issues hopefully with that person and if you are lucky enough, you may be able to get Anna, in RBC visa’s dispute resolution department. She is extremely qualified and has helped a number of people that I am familiar with.  She has been very professional. If you’re lucky, you may just get Anna.

If there are other people who have dealt with different financial institutions and their credit card departments and they are aware of their phone numbers, direct phone lines, I would appreciate it if you could share those in comments and we will share those numbers with our viewers.

Once you are online with the dispute resolution person, then you have to provide the detail of the dispute. You have to; number one, explain the reason for charge-back.  In this case it is because the services have not been rendered by the merchant or the product has not been delivered.  That’s the reason you have to provide and the date of the transaction. Make sure you have your statement for the credit card handy. You need to provide the amount of the transaction. You have to provide all these details. Once the agent is satisfied, then the agent will open a ticket for you for a dispute—an application for dispute. At the end of the call or shortly thereafter you may receive a temporary credit. But remember that that credit is a temporary credit, so that’s stage 1 of the process with the credit card company.

Then you have got to move it to stage 2. Once you have filed the dispute and you need to make sure that the dispute is opened by the credit card company then after that, later on you will have to send the supporting evidence by email or fax. That is all the evidence that you’ve gathered—your invoices, your contract, your communication with the merchant—you need to send all that information to the credit card company.  Once you send that information, the credit card company will then send that dispute to the merchant directly or to its financial institution. Most likely to its financial institution for a response.  They usually have about 45 days to respond and once they have responded, then the credit card company will decide whether your claim is valid.

If your claim is approved, you will keep the refund, otherwise the temporary credit will be reversed—if you have received any temporary credit. Make sure that you understand that the process is not completed until the credit card company has completed its investigation and issued a final ruling whether your claim is valid or not.

Some tips for corresponding with the credit card companies.  You make sure that you initiate the dispute as soon as possible. Normally for products that you have not received, or there are disputes about the actual products or merchandise – the timeline is 30 days from the time you receive your statement, where you notice that the charge is incorrect. But in the cases of services not rendered, obviously, the timeline may be slightly different. Make sure that you initiate the dispute as soon as possible, so that you are not offside, just because of the delay in raising the dispute. Make sure you take extensive notes in that call. If you can record the phone call please do so and you have got to make sure that the dispute is open.

Do not take no for an answer. We have heard a number of stories where the agents who were not qualified to deal with this issue or were reluctant in opening a dispute, cause all kinds of hindrances in initiating the dispute. As long as you are prepared, you will be able to get to the opening of a dispute ticket.  In that regard make sure you have all the documentary evidence, handy when you’re making that call.  You have the invoice for the payment, you have the contract terms and conditions handy, so you can read off the relevant sections if you need to, you have the correspondence with the merchant handy so you can read off the email to the agent and make him or her understand that what has been discussed.  Also make sure that you have the applicable law handy, the Frustrated Contracts Act. You should have it open, you should have section 3 open. If you need to quote that. I’m hoping that you won’t need that, but there are enough bad stories with respect to agents resisting to open dispute tickets, that if you are better prepared then you will be able to have that call done smoothly.

As a recap: you’re entitled to charge-back.   It is your best remedy for seeking refund because the credit card company will do the investigation and if they find that your claim is valid, you simply get your money back.  What it does is, it avoids you going to court and bringing a court action and awards this unnecessary litigation. As long as your claim is for the refund not the claim for damages for money – more than the money that you had paid, and you have made payment by credit card, then this, in my view, is the best approach and hopefully you can benefit from this approach and get your monies refunded.

Thank you for watching.

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

This is our third lecture on this topic. If you are in a situation where you wish to claim a refund for the cancelled summer camp for your child or if you wish to claim a refund for the airline ticket that has been cancelled due to the flight cancellation – how do you go about it?

We once again begin with our usual disclaimer that this lecture is not legal advice. If you have any specific questions you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral. If you are in another province, then contact the Law Society of that province.

In this lecture series, we have five lectures. In the first lecture which has been posted, we talked about the underlying principles about the breaches of contract and it covers all kinds of scenarios for breach of contract. Please check that out. In the second lecture we talked about the defences to breach of contract. How the breaching party, the non-performing party, can potentially avoid certain obligations, certain liabilities, based on these defences.  We talked about it.  As promised we said that in this lecture, we will apply those legal principles to summer camps and specifically STEM Camps, which is a specific camp that is in Ontario and has clearly indicated that it will not refund any monies to any of the parents for the camps.  In this fourth lecture we’ll talk about how do you go about executing a chargeback, a reversing of credit card payments for those monies and if everything else fails and if you have to go to court, how do you go about doing that.

What are the defences that have been forwarded or is likely to be forwarded by STEM Camps? Let’s talk about that specifically. Fundamentally, their defence seems to be based upon their notification that their contract for performance of their services i.e., running of camp is frustrated.  It’s impossible.  Why is that? Because the government has announced that the summer camps or any children’s activities where there will be a gathering, is not going to happen until September. That’s why they cannot operate. In that scenario the Frustrated Contract Act, applies.  This is the Act that I had mentioned in the previous lecture.  Then, on that basis STEM Camp should refund payment to parents and then they can deduct certain expenses relating to the camp.

What is the basis for STEM Camp to refuse complete refund? Essentially, they are forwarding/ advancing two kinds of arguments. One is that they are saying that we have changed the camp to virtual and so, we no longer are providing a physical camp, but we have changed it to virtual camps.  That’s why we shouldn’t be refunding and we will not be refunding any money.  The second argument that they’re making is that, there is no money left to pay back and therefore we’re not going to be refunding any money.

Let’s look at both of these explanations / excuses and see where does the law stand on these kind of explanations. The first argument: that they have changed the camp to virtual camp – is that an acceptable argument? The answer is No! When they change the physical camp, where the children were required to physically attend and socially interact with each other and learn and the camp was going to provide their childcare – all of these things – when they change that to a virtual camp, that is a change in one of the fundamental terms of the contract. You’re fundamentally changing the contract. It was different before and now you’re changing it to virtual—which is a fundamental change.  You cannot make a fundamental change unilaterally.

You have to consult with the parents, you have to make a proposal and if parents agree—it could be different for individual parents—but if a parent agrees to that, only then you are able to change it.  Otherwise you cannot unilaterally change the contract which seems to be the case that they have done. This argument is not going to be acceptable by a court. Also what they have done is not a comparable change. What they’re offering now is (previously the child would be attending the camp for the entire day and for the entire week) one and a half hour per day.  The activity will be virtually done and the parent will be responsible for the child. There is no childcare provision and the child will not be attending full time, for the entire day. This is not a comparable scenario and this argument is not going to be acceptable to the court.

The second argument is that we have no money left and therefore we can’t refund it, because there’s no money.  If you force us to refund, then we will have to unfortunately apply for bankruptcy. That argument is not going to fly either.  Primarily, because based upon their policies or the policies at the time people had purchased these camps and executed their contracts, their expenses can literally not exceed 10% of the purchase price. If you had paid $500 for that camp, then the expenses cannot exceed $50—because of their refund policy.  They have removed this refund policy which we’ll talk about next. The refund policy, when people purchased these camps, was that if the parents or the child cancels their attendance at the camp and it is done more than thirty days in advance, then you get ninety percent of the money back, only 10% of the money will be charged as administrative fees. This is a scenario when the child or the parent actually cancels. The non-performing party is the child or parents not the camp itself and, then, similarly if the cancellation is between 14 to 30 days then the refund is 50%.

When the camp is cancelled by STEM Camp itself, then they cannot justify, in my view, any expenses that could possibly exceed 10 percent of the value.  That’s the problem that I see.  Even for this refund policy, it states that when you claim that refund within 5 to 7 days, they have to process it.  I understand many people have already asked for the refund and they have simply said that they will not refund any money.

All of these scenarios and what I have seen with respect to the answers by STEM Camp brings me to the issue of potential fraud—which is a much more serious issue than the breach of contract that we have been discussing.  If this matter is before the court and the court finds that there is fraud or a fraud is established, then the court is entitled to pierce the corporate veil and then hold the directors and controlling mind of the corporation personally accountable.

Based upon what may be happening in STEM Camp this may be a possibility. It may go in that direction.  There may be people who claim fraud against STEM Camp, if this matter is not resolved amicably. Some of the examples that I am seeing that could amount to fraudulent conduct or bad faith conduct on part of STEM Camp are as follows: I’m not going to go into much detail, because I can see that this matter is going to go to litigation. But there are potentially false claims for certain expenses. Their claims that STEM Camp has advised people, that they have expended money in certain ways and those people have gone ahead and verified and found that in fact those expenses were actually not incurred.

Similarly, there are claims made by them that there has not been any receipt of grants and apparently it seems that parents have confirmed that is not true either. Then in terms of conduct – forcing parents to choose between donating their money, what they have said is either you donate the money or you accept the virtual camp. Those are the two options that STEM Camp offered to people and that’s hugely problematic because people are entitled to claim full refund and at least they are entitled to refund based on the refund policy. Just giving them the two options seems to be bad faith conduct. Similarly, they have gone ahead and removed refund policies from their website. They have taken away their Twitter page and whatnot and they have posted certain information that seems to be misleading for parents, etc. All of these scenarios if they are found to be true by the court and fraud is established, then STEM Camp may face a larger problem than simply the refund of the monies that people have paid.

Let’s recap. In my view, there’s absolutely no valid argument for STEM Camp to refuse refunding, repaying the monies that have been paid by parents to them and then forcing upon the parents the option of choosing between virtual and donating the money is rather absurd.  It’s not legally valid.  I can see that there are potential issues that may give rise to claims for fraud or bad faith conduct which will be problematic.

In the next lecture: Now, if you are one of those parents who are entitled to claim, refund – how do you avoid going to court? Just by simply getting your payments reversed by credit card companies, if you have made by credit card it’s called chargeback. How do you go about doing that we will give you some basic steps for doing that, so that you can accomplish a reversal of these payments without any difficulty.

Thank-you for watching.

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

This is our second lecture on the topic, that if you are in a situation where you intend to claim refund of monies paid for a summer camp for your children or for airline tickets for the flights that have been cancelled due to Covid-19, how do you go about doing that.

Once again we begin with our usual disclaimer that this lecture is not legal advice.  If you have any specific questions regarding your own issues you should contact a lawyer or a paralegal or the Law Society of Ontario, if you’re in Ontario or another provincial or Territorial Law Society in a different province or territory.

Now in this lecture series as I mentioned earlier, we have five lectures.  In Lecture 1 we had already discussed the underlying legal principles that relate to breach of contract. In this lecture we’ll talk about some of the defences to the breach of contracts. In the 1st lecture we have talked about that if you are the party, who is the non-breaching party, you are the party who is willing to perform the contract but the other party has breached the contract, you are entitled to damages. Those damages could be more than the money that you have deposited or the value of the contract. It could be more than that and then we raised the question that, can the breaching party, the non performing party, can it avoid liability? Can it avoid payment of damages partly or completely? That brings us to the answer “yes”.  That brings us to today’s lecture which is the defences to the breach of contract.

In the 3rd lecture we’ll apply all these principles to a summer camp scenario.

In the 4th lecture we’ll talk about, how to reverse credit card payments and if all fails, then how do you go to court and claim your damage.

There are three kinds of defences that a breaching party—a non-performing party—can claim. The first category is called common law defences. They come from the common law system, which is based on judge-made law over centuries. The second one is contractual defences. These are the defences that could be found in a specific contract between you and the other party.  The third kind of defence is statutory defence—which may be codified in a statute in your province or in Canada, generally.  Those are the three kind of defences that could allow a breaching party, a non-performing party to avoid some or all of the liability.

What are common law defences? Let’s talk about it. There are many justifications, many defences for a breaching party to avoid liability or its obligations: that could be mistake, could be duress, coercion, could be misrepresentation. These are all varieties of defences that may be available to a party.  With respect to the scenario that we are dealing with – which is Covid-19 (in the pandemic), generally speaking, the common law defences that could be applied to this situation would be frustration of contract, impossibility, impracticability, etc. These are the three kind. There is another one in the U.S. called frustration of purpose. They’re all kind of similar but not exactly the same. They have separate definitions; we’re not going to get into that.

We will try to keep it simple.  What you want to understand is that in all of these defences what they are saying, is that an event or occurrence has transpired, which is beyond the control of the non-performing party.  That event or occurrence has disabled the party to perform its obligations under the contract – beyond their control.

For example, there are a number of examples in history that may apply.  It could be war, could be serious crime, could be riots, could be strikes, could be natural disasters. All of these things may – depending upon the circumstances of the case – fall under frustration of contract: impossibility, impracticability.

In our scenario, the airline is obviously going to advance the argument that the contract is frustrated or impossible to perform because governments have disallowed international travel.  They are ready to fly their planes. But they cannot because of the changes in law and regulations.  Similarly, the camp providers will argue that their contracts have been frustrated because the government has closed the schools until September (at least in Ontario) and social gatherings are not allowed – which is why this is beyond their control and they’re not able to perform the contract and therefore they should be excused from performing their obligations and to some extent liability.

What are the consequences of these defences?  When a court finds that the contract is indeed frustrated, it relieves parties – both parties, of their obligations and liabilities. What does that mean if the monies have been paid already or if there were any advance payments made? Those need to be refunded, deposits need to be returned.  Then if there are any deductions for expenses that may be possible – essentially the court is trying to find how the contract can end in the best possible way without being unjust to any of the parties. There are potentially some deductions of expenses possible to the advance payments but we will talk about it in more detail.

The second kind of defence is contractual defences. These are the defences that are in the contract between you and the party.  The most common example of such defence is called “force majeure clause” or an “Act of God” clause.  I can’t perform the contract because God did something. Thunder struck or lightning struck and the building burnt down or, there were natural disasters – the hurricane came or pandemic occurred, things like that. These are extraordinary events, very similar to what I said in the ‘frustration of contract’ but now that frustration of contract is in fact ‘codified’ in the specific contracts that you have between you and the non-performing parties.  These are scenarios which are beyond the control of parties and they have been codified.

Where would you find these clauses? Most common, these clauses ‘force majeure’ clauses will be in an insurance contract.  If you have an insurance contract for your house or for your car you read the terms and conditions and you will find that there will definitely be a force majeure clause in there. Not common in summer camp contracts—you won’t see, unlikely that you will see it in a summer camp contract. What are the consequences if there is such a clause?  The court is going to enforce that contractual provision.  Generally, what will happen is that all parties will be relieved of their obligations and liabilities.  Or, if the liabilities can be postponed, they will be postponed to a different time – but it depends.  Then the potential—there is a potential for refund of advance payments or deposits that have been made.  Then there’s a potential for deduction of related expenses. But whatever the contractual provision states about that occurrence then the court is going to impose it, unless there is a violation of some sort of statute.

Which brings us to our next defence, which is the statutory defence.  Statutory defences are defences that trump the common law and contractual defences.  If there is a statutory provision that applies to your circumstances—that provision is the one that the courts are going to enforce. With respect to our scenario there is a statute called Frustrated Contracts Act of Ontario. It’s in Ontario.  I understand that other provinces have similar legislation.  I’ve provided the link here. 

What does this contract do? It deals with scenarios (it deals with contracts) that have been frustrated or are impossible to perform. What happens in those contracts when the Court finds that a contract is frustrated or it is impossible to perform? Then section 3(1) and (2) require the return of monies that have already been paid by one party to another—so refund, give it back.  There are expenses that could be deducted. There are two sides of it.  Money needs to be paid and expenses can be deducted. Now, section 3(6) also says that the court should enforce if there is a contractual provision between parties related to the frustration of contract – then court ought to enforce that provision.

There’s one more example that I’m going to provide, which is a legislation called ‘Air Passenger Protection Regulations’. It’s in Canada. I have provided the link.  If you look at that legislation section 17 (2) requires the airlines to refund the ticket if the flight is cancelled, which is the scenario / the situation for most people. The legislation does not say you can give them a voucher and send them away and they can fly in a year’s time. If the passenger is willing to accept that, that’s fine.  But the law requires the airlines to refund full money under section 17(2) of this regulation.

Let’s sum it up again. The non-performing party may have a contractual common law or legislative or statutory defence. That is the only option they have which may enable them to limit their obligations or limit their liabilities – depending upon the circumstances. 

Now that we understand the law we’re going to take this law and we’re going to apply this law to stem camps because we’re aware of the circumstances of that case.  We’ll apply it and then we’ll see whether there is any liability, whether there is any refund that the stem camps are required to pay – which I can tell you yes. The answer is yes.  But we will discuss that in more detail in the next lecture.

Thank-you for watching.

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

If you are in a situation where you had signed up your child or children for a summer camp this summer and that summer camp has been canceled by the organizers due to Covid-19 or if you had planned a trip outside of Canada and your flight has been canceled by the airline and you are looking for the refund of monies paid to the camp provider or to the airline, how do you go about it? What are the legal principles that apply to that situation? This is the topic of our lecture today.

We begin with our usual disclaimer that this lecture is not legal advice.  If you have any specific questions, you should contact a lawyer or a paralegal or the Law Society of Ontario, if you are in Ontario or another provincial law society, if you are in another province or a territory of Canada.

This topic we will try to cover in five lectures. Today’s is Lecture 1. In this lecture we’ll talk about the underlying principles that apply to most contract breaches.  We want to cover this because this particular circumstance of legal principles may apply to different scenarios, right. We’re specifically covering summer camps and flights, but it may apply to any contract that you may have entered and the other party is now breaching the contract—the principles are fundamentally the same. You may have entered into an agreement of sale and purchase for the sale of your house and you may be having an issue where either the seller or the buyer is refusing to close and is breaching the contract. The same principles apply.  It is important to understand the underlying principles, so that if you’re faced with a different breach of contract you can apply those principles at least and understand the fundamental concepts. Obviously, this is not an exhaustive discussion but you will understand the fundamental principles of how the law would apply in these situations.

In Lecture 2, which will be the next lecture, we will talk about some of the defences to breaches of contract. The party—the non-performing party, what kind of defenses that party can raise to avoid liability or to avoid its obligations.

In Lecture 3, we will take those legal principles and then we will apply it to summer camps.  Specifically, we will apply to this one particular camp called ‘Stem camps’ which is in Ontario, because we have more information about what’s going on with that camp. It’s in the news and there’s a lot of information out in Facebook and media.  We will apply these principles to that in Lecture 3.

In Lecture 4, we’ll talk about how do you go about reversing your credit card payments, when you have a dispute with the merchant and the principles of that would apply to a large number of scenarios.  But, of course, we will discuss that process with respect to the summer camps and ‘Stem Camp’ specifically.  Then, finally, if all fails and you have to go to court how do you go about doing that.

We will explain today, you know the basic concepts of contract. We’ll talk about what constitutes a breach of contract? And then, what are the remedies for breach of contract?

The concept of a contract is pretty straightforward right—it is a transaction between two or more parties, where in that transaction parties are exchanging something of value.  You pay money for merchandise – you buy groceries, you buy shoes, you buy a car, you buy a house – you pay the money and you get the merchandise the product on the other hand. Or, you pay money and you get services – you hire a lawyer, you hire an accountant, a plumber, a contractor, whatever you pay money and in exchange you get certain services.

In our particular scenario, an airline ticket is the contract. Alex, for example, will pay $500 or certain amount of dollars to an airline. An airline will fly Alex to Florida on a specific date – that’s an example of a contract with an airline. Similarly, with respect to summer camps.  Alex will pay X amount of dollars to the camp and the camp will provide summer camp activity for Alex’s child. So these are sort of the examples.

All of these are basic contracts.  We know that a contract doesn’t have to be in writing.  Ideally a contract in writing is good but it doesn’t have to be in writing. When a party to a contract fails to perform its end of the deal, that means that party has breached the contract.  It’s as simple as that.

Let’s take an example.  When an airline cancels its flight or changes the date of flight—if it says to Alex we can’t take you to Florida this June but we’ll take you to Florida in June 2021.  That’s the fundamental breach of the contract.  In the case of summer camps, when the summer camp cancels the camp program then they are breaching the contract. The party that is not performing its side of the deal that is the party that is in breach of a contract. Now, why has the party breached a contract? At this stage, it’s not important.  We’ll talk about it later.  But, for now, just consider that if a party fails to perform its part of the deal, then the contract is breached. Now, why did the airline cancel its flight? Or, why did the camp cancel—we will discuss that it is relevant at some stage, but not at this stage.  It’s the contract that is breached. Let’s understand that first.

Let’s talk about once the contract is breached what kind of remedies does the performing party have against the non-performing parties? Fundamentally, in most contractual cases the performing party who has not done anything wrong is entitled to damages. In certain cases, they can be entitled to specific performance, but we’re not going to discuss that today. We’ll keep it simple.  In most cases, for example, this airline example or the summer camp example – the parties will be entitled to damages. Now what I want you to understand is that I’m using the word damages, I’m not using the word refund of money or return of advance payment or deposit.  Damages is a larger term. Your damages could exceed your refund. Damages could exceed the down payment you have made. Damages could exceed the deposit you have made.  Damages is a larger term and let me explain that by way of an example.

We’ll take the summer camp example, to explain to you why your damages could be more than the money you have paid to the other side. In an ordinary camp – let’s take the example of ‘stem camp’.  There are certain activities that the child is going to be involved in. There is certain companionship with other children in that camp and then of course there’s childcare. If the child is of an age that childcare is needed. Those are the automatic components of a camp. Now, if the camp provider has breached the contract – they’re not providing you the camp activities, then you have to replace those activities or at least the childcare or whatever you need to do. There, you will incur certain costs for replacing those things that were being performed or ought to have been performed by the summer camp.

Let’s say the original cost (camp cost) was five hundred dollars for a week-long camp.  Now you have to replace that because the other party has breached a contract and that costs you a $1,000. It could be that amount could be for childcare or could be for anything else but replacing the activities or the function of the camp that was supposed to be provided.  In that scenario your damages are not $500 – your damages are $1,000. They are exceeding the value of the money that you have paid or were supposed to pay for that contract. The point is important so I’m going to elaborate on it a little bit. 

In certain cases now you will see and it is happening already that some people have entered into contracts for the sale of their house, right and everything is final all the preconditions have been met and then because of Covid-19 and uncertain circumstances the buyer has refused to close.  In those cases the buyer is now in breach of contract.  You have to sell your house. So let’s say your deal was for a million dollars but you have to now sell the house and you get the money for $800,000.  You still have damages of $200,000 against the original buyer because that person, that party breached the contract.  The application of damages has larger implication. What I want you to understand is that the remedy for breach of contract is not just the refund of your money.  It could be more than that and in specific circumstances it could be more than the money that you have paid.

Now let’s recap what we have learned from this lecture. Most commercial transactions are contracts.  Non-performing party is in breach of contract when they refuse to perform the contract for whatever reason.  The other party is entitled to damages in most cases and damages could be more than just the refund of the money that has been paid.

Could the non-performing party avoid payment of damages, avoid liability?  The answer is yes.  In certain circumstances the non-performing party will be able to either, not pay damages or pay less damages and that is our topic of the next lecture.  Please stay tuned.

Thank-you for watching.

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

The Ontario government is expecting to open workplaces slowly. It seems to be a very guarded approach. Some of the workplaces will be allowed to open and then monitored carefully to see whether the spread of Covid-19 is effectively being prevented. When these workplaces open, what are some of the precautions that the employers and the employees need to take?  That is the topic of today’s discussion. We will cover some of the important aspects of prevention—but each workplace must consider its own circumstances and implement these safeguards accordingly.

We begin with our usual disclaimer that this lecture is not legal advice.  If you have any specific questions you should contact a lawyer or the Ministry of Labor or Public Health for further information.

We’ll talk about five aspects of prevention. 

• We’ll talk about employee risk assessment that the employers should do prior to employees returning to work.
• We’ll talk about social distancing at workplace. How to manage that?
• How should an employer report illness or how should employees report their illness related to Covid-19?   
• Tracking employee’s activities in the workplace; and
• What happens about sharing facilities and tools in workplace? What are some of the policies that employers and employees should consider?

With respect to employee risk assessment, the first thing that the employers should do is to have an assessment of employees—individual employees, potential exposure or exposure to Covid-19.  This needs to be done for each specific employee separately. One of the things to consider is, what are the risks to the employee himself or herself? Based upon the employee’s health circumstances some employees may be potentially more at risk for Covid-19 exposure and then their circumstances may be different so that needs to be considered.  What about risks to others. Based upon an employee’s personal health circumstances, could they pose a risk to other employees?  That needs to be considered in deciding when and how the employees will return to work. Also, the employee’s family circumstances may need to be considered as well. If an employee is living with elderly parents (who have a higher risk for Covid-19 if they’re exposed).  Or, if they’re living with young children – that needs to be considered.

Also the travel history of the employee and other family members needs to be considered. For example, some employees may have spouses who frequently travel because of the nature of their work.  They may be in essential services and they may have higher risk exposure to Covid-19.  That needs to be considered before a particular employee is scheduled to return to work.

With respect to social distancing, the approach is the same as we have been using in our social distancing outside of the workplace.  But, for employment circumstances, some of the things that employers should consider is staggered work hours of employees—make sure that not all employees are attending work at the same time, stagger their shifts; stagger their breaks in such a way that employees are not gathering in common areas at the same time.

Most importantly employers must manage traffic control within the workplace.  The regulation of pedestrian traffic needs to be managed.  One of the ways to do that is to have sort of traffic signs posted in the workplace directing employees in such a way that they are potentially not close to each other at the workplace.

With respect to reporting illness: any employee who shows any symptoms of cold or flu, they must be sent home—because the symptoms of Covid-19 as we know are similar to cold and flu—until proven otherwise.  If an employee is exhibiting symptoms of cold and flu they must be sent home. The employee should be asked to take online self-assessment. I have provided the link here.  Or, the employee can contact telehealth or contact their primary health care provider for example a family physician. If an employee has tested positive for Covid-19, then employer has an obligation to report that within four days in writing to the Ministry of Labor.

Tracking employees activities: This is important.  Employers must maintain records of employees shifts and location of work, so that if an employee, for example, has tested positive for Covid-19, then the employer is readily able to determine what other employees may have been exposed to that employee and may have a potential exposure issue. Public Health will ask for that information from the employer and the employer is required to provide that information.

Finally, employees may be sharing facilities or tools depending upon the workplace.  The employers need to have sanitization policies and procedures. If the tools are being shared, employer needs to make sure that there sanitization equipment is available to sanitize the equipment, before the other employee is using it.  Similarly, if bathroom and other facilities are being shared then there must be sanitization policies and procedures about how the employees can use those facilities.

All of these policies about social distancing about trafficking, about how employees will return to work these policies need to be posted in the workplace, so employees can review those and access those easily. As I mentioned earlier different workplaces, may have different requirements with respect to how these prevention policies will apply to their circumstances. What may apply to a construction environment, may be different; the requirements of a place where food is being handled or held like rural grocery stores or restaurants, etc., the application of these prevention policies may be different. Government has provided additional resources, I have provided a link here, you can check that link and you can find further information.

Whether you’re an employer or an employee please make sure that you follow all these prevention protocols and stay safe and healthy.

Thank-you for watching.

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

You or any of your family member may be in need of executing a will or amending a will or executing a power of attorney for personal care or power of attorney for property.  As we know that in the circumstances these days – due to Covid-19, there are limitations with respect to people’s movements and also restrictions with respect to when some individuals are hospitalized or in a nursing home or in a long-term care facility. For those reasons government has introduced specific changes to the legislation, with respect to the execution of wills and powers of attorney. Today’s lecture is about those changes, explaining what those changes are.

We begin with our disclaimer that this lecture is not legal advice.  If you have any specific questions you should contact a lawyer.  Please note that a paralegal is not in a position to advise on the issues relating to wills and powers of attorney. You must contact a lawyer for any questions or contact the Law Society of Ontario for any referrals.

Also, please note that the information in this lecture is limited to the emergency that has been declared by the provincial government of Ontario and once that emergency is lifted, then the application of this lecture is no longer valid, because we will revert back to our original method of executing wills and powers of attorneys.

In this lecture I’ll explain briefly, what is that ordinary legislative process that we use.  And, then, what are the changes that have been allowed during the emergency process? Ordinarily, when you are executing a will or a power of attorney there is a very stringent requirement of the parties to be physically present in each other’s company. For example, if a will is being executed the testator or the person who is executing that will, is present and then both (two) witnesses should be physically present at the same location and then testator signs the documents in the presence of witnesses and then the witnesses sign the documents in the presence of each other. There’s a very strict requirement of physical presence at the same time by all parties and if that is not met then those wills are not considered valid. These requirements come from different legislations – Succession law Reform Act is the legislation in Ontario for wills and then Substitute Decisions Act 1992 applies to powers of attorney for personal care and property.

Let’s talk about what is the process that is allowed during the emergency. There are 2 specific changes that government has introduced. Number one is that you are now able to execute wills and powers of attorney through audio visual technology. I’ll explain that.  Secondly, wills and powers of attorney can be executed in counter parts.

What is execution with respect to audiovisual technology? That technology must be such that all parties are able to see each other, hear each other and communicate with each other in real times. All these 3 things are essential. Now let’s say that the person is a testator / a donor.  There is a witness.  Then the 2nd requirement is that with respect to witnesses, at least one of the 2 witnesses is a licensed person—licensed lawyer or a paralegal under the Law Society Act. It must be a licensed lawyer in Ontario or a paralegal who is going to be a witness.  One of the witness—there could be 2 witnesses like that—but at least one witness is a lawyer or a paralegal. Only then you are able to have the will or power of attorney executed through audiovisual technology.

Imagine the scenario where all 3 parties are logged into this audiovisual system.  They’re all able to see each other, talk to each other, hear each other.  Then the testator or the donor executes the will or the power of attorney, while witness 1 and witness 2 are watching.  Then witness one and witness two execute and sign the documents. The requirement is that all 3 are able to hear, communicate and see each other at the same time.

With respect to execution in counterparts: Essentially what this means is that each party is executing a document, a separate document, a separate physical document and it’s being done in counterparts because all 3 parties are not physically present at the same time. What is the essential requirement then? Obviously, that the document they are executing are identical documents and once those identical documents are executed by all parties when you combine all those documents into one document then that document becomes a will or a power of attorney.

The same scenario that we took and in this case the testator or the donor has an identical copy which is identical to the witness 1 and which is identical to witness 2. All 3 individuals are physically signing 3 different documents, but those 3 documents are identical and then once you combine all 3 documents, then that becomes or constitutes that will or power of attorney.

It is important to note that these are the only 2 changes made by the government. There are no other changes made. All the other rules about the execution of Wills and Powers of Attorney, are the same and if you don’t know those rules, you need to make sure that you understand those rules or talk to a lawyer and get that information.

For example, as we know that a beneficiary of a will cannot be a witness to that will. That rule has not changed. Or, when you have to get your will probated or someone’s will probated, then one of the requirements by the court is that you provide the original, “wet” signatures.  That means that the original copy which confirms that, you know based on the signature that this is not a copy, this is not a scanned copy, but it is actually the real original copy—those requirements, none of those requirements have changed. It is important to note that.

I hope these 2 changes help you understand how wills and powers of attorney can be executed in these days and once the emergency is over then we’ll go back to the original requirement of executing these documents in the presence of all parties—in the physical presence of all parties.

Thank-you for watching.