DURHAM REGION HOMEBUILDERS' ASSOCIATION
On Friday, May 29, 2020, the Ontario Government enacted Regulation 228/20 under the Employment Standards Act, 2000. This regulation made several significant changes to employment laws in Ontario, particularly relating to layoffs.
Law firm Mason Bennett Johncox has prepared a memo summarizing some key provisions in the Regulation.
View/Download the Memo
Under the COVID-19 Ontario Regulation 82/20, that model home/inventory home is a part of the builder's supply chain and therefore can generally be sold and open to the public but operating as a retail operation for the builder, and therefore should adhere to the requirements of businesses that engage in retail sale of items to the public within the regulation.
OHBA has prepared a guidance document which may be useful in the development of your protocols for operating a model home.
OHBA has a working group of renovator members, led by Jamie Adams, that have been working on a package to assist renovators in adapting their Health & Safety policy and procedures during COVID-19.
View/Download the Document
Oshawa's Municipal Law Enforcement and Licensing Services requested feedback on the City's Noise bylaw 112-82 and specifically the exemption process relating to construction noise.
The Durham Region Home Builders' Association submitted a letter to the City of Oshawa with feedback.
Presently, the Noise By-law establishes a blanket exemption for Construction Noise occurring:
Individuals may currently apply for exemptions to the By-law in order to undertake construction work outside of these permitted times by submitting a request to City Clerk Services for consideration and approval by the Corporate Services Committee (“Committee”) and City Council (“Council”).
In May 2019, Council directed staff to examine the following in relation to noise exemption requests:
“That in future, when the City of Oshawa receives an application for extension of hours for noise generation that the City circulate a notice to area residents prior to the application being heard at Committee.”
Accordingly, staff are working on a proposed process to be presented to Committee and Council for approval.
The proposed process is as follows:
a) Applicants will be required to submit an application and pay a $250 application fee at least sixty (60) days in advance of the activity. The sixty (60) day timeline is required to allow sufficient time for staff to undertake public notice activities and to allow for public feedback to be received.
b) City staff will send a letter to all property owners within one-hundred and twenty (120) metres of the site, via regular mail, advising of details of the request, the date of the Committee meeting when the request will be considered, and methods of submitting feedback to City Clerk Services.
c) The Noise Exemption Request application and any public feedback will appear on the next Committee meeting agenda for consideration.
d) If approved at Committee, Council approval would then be required.
e) If the request is approved by Council, staff will provide notice of the approved exemption on the City’s website, to the applicant, and to those who provided comments.
If members have questions or concerns, please contact Stacey at firstname.lastname@example.org.
Staff at the Region of Durham have put forward a proposal to waive the indexing for two separate development charge bylaws (the Region-wide DC by-law #28-2018 and Transit DC by-law #81-2017).
A statutory public meeting was held on May 27, 2020 ahead of the Regional Council meeting, and feedback can still be submitted to the Clerk at email@example.com until June 1, 2020.
Council will vote on this proposal at the June 24, 2020 Regional Council meeting.
Members who have questions or concerns are encouraged to contact Stacey at firstname.lastname@example.org.
The Town of Whitby has been working on their "Whitby Green Standards" and opened up public consultation until June 1.
DRHBA and its members have significant concerns with this program, including that the Town is attempting to mandate building above and beyond the Ontario Building Code. This is a concern to builders and developers across Durham Region, as if this program gains traction in Whitby, other municipalities may follow suit.
In the proposal, the Town of Whitby has created four tiers, each of which has criteria that needs to be met. Initially, the plan is to make tier one mandatory, and mandate the remaining tiers in the future. The tiers are separated into two checklists, for subdivisions and site plan approvals.
DRHBA submitted a letter to the Whitby Green Standards committee and a letter to the Mayor and council on May 11, 2020 outlining our concerns with the mandatory criteria.
As of May 29, 2020, DRHBA has not received a response to that letter.
On May 29, 2020, DRHBA submitted a second letter to council and the committee, along with a legal opinion from Leo Longo of Aird & Berlis.
As of the April 29, 2020 stakeholder meeting, Town staff are planning to bring this proposal to council in June for approval.
Members who have questions, concerns or comments about the proposed Whitby Green Standards are encouraged to contact Stacey at email@example.com.
On Monday, May 25th, Clarington council considered a bylaw put forward by the planning department designed to replace bylaw 84-63. The new bylaw was created in response to the Bowmanville Character Study, which looked at ways to maintain the existing character of a specific section of Bowmanville.
Members had concerns about the restrictions contained in the proposed bylaw, and DRHBA submitted a letter to the planning and development committee for consideration.
In addition, past-president Emidio DiPalo gave a delegation to council at the May 25th meeting. As a result, Clarington council voted to send the report back to staff with instructions to work with DRHBA and area residents to come up with criteria that are not as restrictive while also maintaining the character of the neighbourhood.
Members with concerns about this issue are encouraged to contact Stacey at firstname.lastname@example.org.
The City of Oshawa undertook a public consultation to obtain input on whether the City should pass by-laws under the Municipal Act, 2001 to control nuisance dust and dirt on roads and properties in Oshawa due to construction and development projects.
DRHBA's government relations committee reviewed the associated documents and prepared a letter to be submitted as feedback.
You can view DRHBA's letter here.
From Templeman LLP:
Workplace Reopening Q&A
I am ready to recall my employees from layoff – how do I do that?
The process to recall employees from a layoff may be dictated by whether you are a unionized workplace or not. If unionized, the collective agreement will typically include an article that will set out how layoffs and recalls will function, including how notice is to be given and the order in which employees return, which is usually based on seniority.
If you are not a unionized workplace, the proper process to follow may depend on your specific circumstances and the process through which layoffs were first administered. In general, recalls should be done in writing and a specific date for the recall should be set. It is advisable to make sure that employees have reasonable prior notice of the recall date. Employers may be expected to return an employee to the position he or she last held prior to the layoff, and any changes necessitated by changed circumstances should be communicated.
Under what circumstances can an employee refuse to return to work, and how do I respond?
There are several circumstances in which an employee may validly refuse to return to work. If the employee has specific concerns related to the health and safety of the workplace, and he or she is not part of a special class of excluded employees, the employee may engage in a work refusal under the Occupational Health and Safety Act (OHSA) when the employee has reason to believe that he or she, or in some cases another worker, is likely to be endangered by:
In the case of COVID-19, complaints would likely be grounded in the second point, the “condition of the workplace”.
If an employee refuses to return to or perform work citing unsafe working conditions, employers will be expected to follow the OHSA work refusal process, which includes investigating the refusal and advising the Ministry of Labour if the investigation and any remedial steps taken do not resolve the issue.
Employees may also decline to return to work if they meet the criteria for a leave of absence under the Employment Standards Act, 2000 (ESA). It is important to remember that the special emergency leave related to COVID-19 remains in effect for employees impacted by COVID-19 in a variety of ways, including if they cannot return to work due to childcare obligations.
Employees may also be justified in refusing to return if they have special circumstances such that insisting on their return to work could amount to a human rights violation. While employers should adopt a return to work policy or procedure and strive to apply it evenly and fairly across their workforce, individual refusals to report to work must be evaluated on a case by case basis.
Will my employees remain eligible for the CERB if they resume work?
An employee does not need to remain on layoff to access the Canada Emergency Response Benefit (CERB), provided they meet the established eligibility criteria. However, an employee may be ineligible if he or she earns more than $1,000 in a CERB eligibility period. If an employee is recalled during the first four-week period he or she applies for the CERB, the employee would be required to pay back the $2,000 benefit if he or she earns more than $1,000 for 14 or more consecutive days within the four-week benefit period claimed. If the employee is recalled during a subsequent period, he or she cannot have earned more than $1,000 for the entire four-week benefit period. The $1,000 income threshold includes employment and self-employment income, and encompasses tips, non-eligible dividends, honoraria, and royalties earned during the benefit period.
If employees are approaching you with questions about how a recall will impact CERB entitlement, it is generally best for you, as their employer, to decline from giving advice that may have financial and tax consequences for the employee. Employees should obtain that guidance from the CRA or their own financial or legal advisors.
For more on the CERB eligibility and income requirements, see:
If I am not in a position to recall my employees, how long can I keep employees on layoff?
Assuming that layoffs were validly implemented to begin with, further to a preexisting agreement between the parties or with the consent of the employee, a temporary layoff under the ESA is capped at 13 weeks in any consecutive 20-week period. Note that this does not require the layoff to last for 13 consecutive weeks. This may have implications if you are planning on recalling employees for a short period and then returning them to layoff.
Where certain criteria set out in the ESA are satisfied, such as continuing employee benefits, that period can be up to 35 weeks in a 52-week period.
After the period of a temporary layoff has ended, the employee is deemed to have been terminated under the ESA which may trigger termination pay obligations for you.
Layoffs that were not validly implemented pursuant to an employment contract or collective agreement may also lead to additional liabilities such as constructive dismissal claims.
Interestingly, British Columbia has recently passed legislation to extend the 13-week threshold to 16 weeks for layoffs relating to COVID-19, if the employee agrees. Ontario has not yet indicated whether it will take similar steps.
I’ve heard that the Ministry of Labour is stepping up inspections. How do I ensure that I am compliant with current workplace health and safety requirements?
At a minimum, employers should continue to follow public health advice and ensure that any reopening or relaxing of restrictions are consistent with the Government’s current emergency orders under the Emergency Management and Civil Protections Act. The Government has also now published over 90 sector-specific health and safety guidelines and workplace information posters. Employers should review and implement these guidelines as applicable, and would also be well served to display the posters and other health and safety association publications where appropriate.
The guidelines and other association resources can be accessed through:
As the economic reopening stages progress, employers should continue to regularly consult Ontario’s centralized information site, https://covid-19.ontario.ca/, for updates and may wish to consult with industry or trade associations and with legal counsel for further direction.
While the public health risks persist, employers should position themselves to raise due diligence defences by tracking and complying with public health guidance.
Are there certain policies or procedures that should be in place before I begin bringing people back into the workplace?
The answer to this question is going to be very contextual and specific to your workplace.
As a starting point, employers should consider updating existing workplace health and safety policies to include policies and procedures specific to infectious disease.
It is also advisable to consider whether policies relating to sick time, reporting sickness, and/or the requirement for medical notes need to be revised. As indicated in previous Handouts from the Templeman Labour & Employment group, employers have to balance their obligation to safeguard the health and safety of their workforce with the general duty to safeguard the confidential medical information of employees. If you do not have a procedure that directs employees on the confidential reporting of health concerns, and/or a sickness or accommodation policy that deals with how you approach time off work when an employee is ill, adopting such policies could assist management in dealing with any issues that arise.
Employers may also see an increase in workplace harassment and discrimination complaints, as employees take issue with management requiring them to return to work or prompting them to do work that they don’t want to do. Under the OHSA, employers are required to have a policy on workplace harassment. Employers should ensure such policies are in place, and confirm that they include a procedure for dealing with complaints.
In a unionized workplace, an employer may have an obligation to consult with the union and/or a joint health and safety committee before introducing or amending policies. In the non-union context, employers should ensure that any updates and changes are clearly communicated to and acknowledged by employees.
Will I be liable if I recall an employee and he or she contracts COVID-19 in the workplace?
If you are an employer who is required to or who has opted into providing WSIB coverage, the WSIB has confirmed that it considers COVID-19 a compensable occupational disease, where applicable criteria are satisfied. What this means is that, in general, an employee will have a right to claim WSIB in relation to his or her illness, in lieu of a claim or right of action against his or her employer.
The WSIB has released a document clarifying how COVID-19 specific claims will be approached. Each claim will be determined on a case by case basis, and decision-makers will consider whether:
1. the nature of the worker’s employment created a risk of contracting the disease to which the public at large is not normally exposed; and
2. the WSIB is satisfied that the worker’s COVID-19 condition has been confirmed.
If these considerations are satisfied, the WSIB has indicated that they will constitute persuasive evidence that the worker’s employment made a significant contribution to the worker’s illness.
For more on WSIB claims, see:
We continue to encourage employers to actively monitor their workplaces and to follow pubic health and governmental directions to the greatest extend possible to minimize the risk of a health and safety liabilities. What this looks like will be different for every workplace, but before reopening employers should think through the details of physical distancing, sanitation measures, and whether any PPE is required for employees, so that those considerations have been addressed and the proper equipment is in place before people return.
For up to date information, the following resources may be of use:
Government of Canada
Government of Ontario
Ontario Hospital Association
This summary does not constitute legal advice. Please feel free to contact your Templeman LLP lawyer with respect to specific plans for your workplace.
From the Ministry of Transportation:
Ontario's Action Plan: Responding to COVID-19 outlined the first steps in our government's immediate response to the current crisis. It includes health care resources and provides immediate relief with support for people and jobs.
While the number one priority remains the health and well being of all people, we also need to be prepared once the state of emergency is lifted to responsibly reopen the economy.
For the next phase of Ontario's Action Plan, we need to develop a recovery plan with the same thoughtfulness as our crisis response so that we are doing everything we can to stimulate economic growth and job creation, while continuing to protect people.
Please find below a link to a survey. The purpose of the survey is to understand the impacts of COVID-19 to your organization to date, recovery measures, planning, and transportation opportunities. Recovery planning is moving quickly and we would like to gather this information as soon as possible. Your participation in the survey and response by Tuesday, May 26 would be greatly appreciated.
If you have any questions, please email the project team at ProvincialPlanningOffice@ontario.ca.
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Durham Region Home Builders' Association is a 501(c)6 non-profit organization. 101C-1050 Simcoe Street North, Oshawa, ON L1G 4W5