COVID-19 SPECIAL EDITION - LEGAL IMPLICATIONS OF THE PANDEMIC - Volume 38, No. 2 | SPRING 2020
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NOVA VOCE
Volume 38, No. 2 | SPRING 2020 The Voice of the Legal Profession in Nova Scotia
COVID-19
SPECIAL EDITION
LEGAL IMPLICATIONS OF THE PANDEMIC
TABLE OF EXECUTIVE UPDATE
CONTENTS
PRESIDENT
The last couple of
2 Executive Update
weeks have been
4 Professional Development unprecedented. Every
5 CBA Resources day, every hour we
learn of some new,
10 Aboriginal Law
Dan Wallace,
McInnes Cooper usually disheartening,
11 Charities and Not-For-Profit Law event. However, life
12 Citizenship and Immigration Law goes on and we adapt.
13 Constitutional and Human Rights Law I am pleased that my firm, McInnes
15 CCCA Cooper, has taken proactive and
consistently updated measures to address
16 Criminal Justice
the COVID-19 outbreak. The firm has
18 Elder Law embraced working from home, put in now has two new complications: a 5 and
8 year-old who require a certain amount
20 Equity and Diversity social distancing measures at the office
of attention. This has meant an hour of
and is assisting firm members during this
21 Family Law difficult time. work, followed by a healthy dose of jigsaw
23 Government and Public Sector Law puzzle making and Harry Potter reading.
In many ways, my practice seems It’s only early days, but that balance as
25 Health Law unaffected at this early time. I can well as regular outdoor activities has
26 Insurance Law communicate with and respond to clients seemed to keep everyone in good spirits.
28 Intellectual Property Law just as I did prior to the pandemic.
I hope that everyone stays safe and takes
29 Labour and Employment Law I am fortunate to have a practice that care to look after themselves and those
33 Municipal Law enables me to work from home, which around them. This difficult time may not
is something that I typically do one day pass quickly, but it will pass, and we will
34 Privacy and Access Law a week. However, working from home get through this.
35 Real Property Law
37 Wills, Estates and Trusts
VICE PRESIDENT of the pandemic on a variety of practice
38 Young Lawyers
Our CBA office has
areas, which have been well attended by
members.
been a tour-de-force!
Not only have they Planning for the next annual conference
been able to seamlessly is well underway. Although we are
(at least from our hopeful that it will be a good opportunity
Agnes MacNeil,
perspective) move to to come together again and see old
Department of
Justice remote support from friends, meet new ones, and attend
home, but they have some interesting and informative CLE
switched to online CLE for section sessions, we are also examining various
meetings. A shout-out to Jenn Taylor contingencies for virtual delivery.
and our ED Jane Bates for an excellent In terms of my office’s move to work
presentation by Dr. Ungar on resilience. from home, as a manager of a team, I
Published by the Canadian Bar Association
While it was a Young Lawyers Section can say that the reactions have varied.
– Nova Scotia Branch meeting, some of us old people joined Some people love it, and some people
CIBC Bldg., 1809 Barrington St.,
too, as it was relevant for all ages and do not. It certainly takes more effort to
Suite M102, Halifax, NS B3J 3K8
lengths of practice. There has been a host stay connected. There is no chance you
of other webinars looking at the impact will run into a colleague in the hallway.
Phone: 902 422 1905
Fax: 902 423 0475
Email: cbainfo@cbans.ca
2 Nova Voce •Website: www.cbans.ca
FALL 2018 CBA Nova Scotia
EXECUTIVE UPDATE
However, it has challenged many of us that we have space enough for everyone I think as a group, Nova Scotians are
to use the technology we have better to in my family to have their own work used to facing adversity with strength,
keep in touch and to see each other, even area so we are not on top of one another. determination and a sense of humour.
if over the internet. Much of the work I do is computer- I know we will get through this and
My university aged children are home centric, so for me, the switch to working staying at home will help protect the
and the atmosphere for me has felt like from home has not been such a shock. health workers and first responders on
working during the holiday season, I am enjoying the added time from not the front line, and our loved ones. It will
having time with everyone together, and having to commute and being able to be worth it, and when we come through
particularly with the snow we have had wear more comfortable clothes, unless on the other side, we will find that we
falling in the background. I am lucky there is a WebEx or Zoom meeting! have increased the ways we can work
and share together. Stay safe!
TREASURER brutal, with no time left in the day to
get any exercise or fresh air. Little did
Although I’m not we know when we bought the place 20
sure I have any funny years ago that it would be pretty good for
or inspiring stories, waiting out a pandemic and maintaining
here is a picture of physical distance.
how I am coping with
the pandemic and WFH is going fairly well. It’s difficult to
supporting our Nova have blocks of uninterrupted time with
Terry Shepperd, two school-aged kids who are “in school”
BoyneClarke Scotia Craft Brewers all
at the same time! at home, which means I have to make
up for hours lost in the evening and on
weekends. In the work law world, clients
need lots of advice and representation
our kids’ care if something happens to
at this time on matters such as health
both of us, but I recently made sure that
and safety, refusals to work, lay-offs
younger members of our family know
and terminations and compliance with
where to find them.
constitutions and by-laws. We are also
trying to keep non-COVID-19 related Things that have helped me cope and
work moving with telephone conference stay positive: an impending pandemic-
and Zoom hearings, using agreed panicked purchase of a Nespresso
statements of facts and pre-hearing machine, for which, in order to get a
written submissions when possible. good deal, I had to buy 100 years’ worth
We worry about delayed justice for our of coffee capsules; cake and brownie
clients, and the backlog that will exist mixes to make with the kids; making
when this is over. In the meantime, we donations to organizations like Feed NS
and Elizabeth Fry; going for a walk every
PAST PRESIDENT are also focusing on our social media
day; and kayaking on weekends. We’ve
platforms, providing regular updates on
I’m very fortunate COVID-19 implications for workplaces. just added weekly Sunday video calls
to live outside of with our extended family to our routine,
the city, on a lake On the negative side, I’m doing far too
and each Sunday we’ll have a theme.
and surrounded much “doomsurfing,” which I am sure is
The last one was crazy hair day. Not a
by woods. During affecting my mood and my sleep. I’m not
stretch for me as my mane gets bigger
Gail Gatchalian, QC normal times, the very productive, either, but I am giving
and greyer every day. I easily perched a
Pink Larkin commute to work myself some time to adjust. We already
large fake bird on my head and used my
and back can be had up-to-date wills that provide for
hair as a nest!
The voice of the legal profession Nova Voce • SPRING 2020 3
PROFESSIONAL DEVELOPMENT
PANDEMIC
PROGRAMMING
The ongoing pandemic has brought with • Pandemic Management and Privacy Despite the uncertainty of the current
it many things, from school closures to Implications (March 30, 2020) climate, another thing this ongoing
physical distancing and unprecedented • Remote Working and the Law: Setting situation has brought with it is a renewed
shifts in our workforce and economy. Up for Success (April 1, 2020) sense of community. We are very
For many, the situation has also brought • Tech Tools and Tips to Work from thankful to our Section Chairs and others
uncertainty, anxiety and a sense of Home (April 3, 2020) who answered our call and willingly
disconnect. CBA-NS staff and volunteers Our CBA partners across the country (often with short notice!) shared their
have worked quickly to bring timely are also working to meet the needs of expertise with our members. From your
programming to our members to address our members during this time. Several home offices, living rooms and kitchen
some of these issues and will continue to resources that may be of interest to you tables you have joined us to not only get
do so in the weeks and months ahead. are listed below. answers to some of your questions, but
Our COVID-19 related sessions so far also remember that you are not alone. We
have included: • CBA National COVID-19 Resource look forward to continuing to support you
Hub (https://cba.org/Membership/ with substantive, practice management
• Providing Family Law Services in the COVID-19)
Age of Social Distancing (March 25, and wellness programming during, and
• CBA National Wellness Programming, after, this pandemic.
2020) including the Mindful Lawyer Series
• Resilience During Times of Change and (https://cba.org/wellness) From the CBA-NS Staff
Challenge (March 26, 2020) • CBA Ontario Branch’s Priority
• Workforce Issues and Immigration Programming (https://www.oba.
During Uncertain Times (March 27, org/2020_COVID_19/Priority-PD-
2020) Programs)
You will find within the pages of this special edition of Nova EDITORIAL BOARD
Voce, a range of articles discussing the legal implications
Tammy Wohler, Nova Scotia Legal Aid
of the COVID-19 pandemic across almost all practice areas
Victor J. Ryan, Burchells LLP
represented in Nova Scotia. Please keep in mind that these
articles are provided for general information only – they do Michael Murphy, McInnes Cooper
not represent legal advice. Given the constantly evolving Damien Barry, Louisbourg Seafoods Group
nature of the state of emergency, and legal and governmental
Special thanks to everyone
responses, there is the potential that the information
who contributed to the magazine and
contained herein may no longer be current at time of print.
CBA–NS staff for their assistance.
4 Nova Voce • SPRING 2020 CBA Nova Scotia
CBA RESOURCES
WORKING REMOTELY
TIPS AND BEST PRACTICES
• Keep your personal computer and/ unattended or in a car.
SIMON or device software up to date.
GINGRAS 6. Use a VPN or Citrix connection to
Canadian Bar
• Make sure your personal computer connect to your office network.
Association has up to date anti-virus software 7. Watch out for email phishing:
installed.
• There has been an increase in
3. Keep work data at work phishing attacks recently. Look out
In this new age of remote working, here
• Try to avoid downloading work data for unusual emails with misspelled
are some tips and best practices to ensure
on your personal computer or USB email addresses. If you receive a
the security of your information:
key. request to purchase or transfer
1. Home internet connection (WIFI) money, it should be confirmed by
• If you need to print work data, make
• If you did not change your router sure it does not stay unattended. phone with the requester.
password when it was installed, you Documents should be kept locked • Hover over links to see the URL
should do it now! in your home office or in a filing and don’t click links or attachments
2. Personal computer and device (tablet, cabinet. unless you trust the sender 100
mobile) 4. If you need to communicate personal/ percent. If in any doubt, contact
confidential information, it should be the alleged sender using a phone
• Your personal computer and/or
encrypted and password protected at number or email address that you
device should be protected with a
all times. find somewhere other than in the
strong password and lock after 10-15
suspicious email.
minutes of inactivity. 5. Never leave your laptop and/or device
PANDEMIC GUIDE
FOR LAW FIRMS
In 2014, the CBA’s Labour and Employment the legal duty to prepare for a pandemic be downloaded at https://www.cba.
Law Section created the Pandemic Guide and how to manage employees during a org/Sections/Labour-Employment/
for Law Firms. This comprehensive report pandemic period. Resources/Resources/2014/Pandemics-
remains just as relevant today, and contains and-the-Workplace-A-Resource-for-
advice and recommendations regarding A summary of the Guide is contained Lawyers.
below, with the full version able to
The voice of the legal profession Nova Voce • SPRING 2020 5
CBA RESOURCES
Pandemics and the Workplace A Resource for Lawyers
What could be different in your workplace during a pandemic?
Inter-pandemic period Pandemic alert period Pandemic period
LEVEL OF ILLNESS DURING FLU SEASON
• 5–8% • level of illness increasing: 8+ % • 15 – 35 %
HEALTH & SAFETY ISSUES
• Understood within normal operational • May be heightened concerns about • Heightened fear of health risks and
realities working near a co-worker or serving a pressure to take all protective
customer who appears to be ill. measures possible.
• May be need to provide protective • For work places with health and safety
equipment such as masks, gloves, committees, illness levels may prevent
sanitizers. meetings or require online meetings.
• May be need to increase frequency of
facility cleaning or cleaning methods,
etc.
• May be need to restrict work-related
travel service delivery (e.g. over the
phone rather than in person).
PUBLIC HEALTH INVOLVEMENT
• General messaging regarding • Warnings about spread of illness • Imposition of quarantine
hand-washing, getting fu shots, etc. • Possible directives on what to do if ill, • Directives concerning some segments
e.g. stay at home for 7 days. of the population (e.g. pregnant
• Possible directives not to visit a doctor women)
or clinic unless specifc symptoms • Directives concerning return to work
present. protocols, etc.
REQUESTS FOR COMPASSIONATE CARE LEAVE
• Rare • More likely as family members may be • Expected to increase signifcantly with
ill and require care. 1 in 3 people in the population ill and
• Directives concerning some segments being told to stay home
of the population (e.g. pregnant • May be a heavy impact on employees
women) with school-aged children or elder care
• Directives concerning return to work responsibilities
protocols, etc.
6 Nova Voce • SPRING 2020 CBA Nova Scotia
CBA RESOURCES
What could be different in your workplace during a pandemic?
Inter-pandemic period Pandemic alert period Pandemic period
REQUESTS FOR ACCOMMODATION
• Handled as part of routine • Increased volume of requests in a short • A food of requests in a short period of
management function period of time. time
• Usual decision-makers may be ill. • Usual decision-makers may be ill
• Situation may enable employer to
refuse requests as “undue hardship”
during the crisis
DECISION-MAKERS
• Routine decision-making process • Some decision-makers may be ill or • Many of the decision-makers are ill and
not able to meet in person; next-in-line unavailable; who may make decisions?
decision-makers have to step in
RECORD-KEEPING
• Routine record-keeping process • Some record-keeping staff may be ill. • Many record-keeping staff may be ill
• Decisions may need to be made by • Decisions may need to be made
people who are not familiar with quickly (e.g. permission to work from
record-keeping systems and protocols home, permission to return to work
without a doctor’s note, shift change
requests)
PRIVACY / CONFIDENTIALITY
• Routine • Possible need to breach confdentiality • Possible directives to report illness to
to let co-workers / customers know of public health authorities with no
a risk to their health process in place on how to do this
• Diffculty in maintaining privacy / while maintaining privacy
confdentiality when there is a • Possible loss of control of privacy /
heightened sense of danger from a confdentiality with untrained staff
serious and contagious illness handling notices of absence, accom-
• May need to obtain additional medical modation requests, record-keeping,
information from employees etc.
GRIEF
• Usual practices followed • Possible need to respond to an • Fear of becoming ill and grief over
unexpected number of deaths among colleagues who have died from the
workers and their families illness may lead to low morale
• Possible deterioration of employer /
employee relations if management is
perceived as not looking out for
employees or acting appropriately
given the crisis of a pandemic
November 2014 © The Canadian Bar Association
The voice of the legal profession Nova Voce • SPRING 2020 7
ZOË ODEI YOUNG LAWYERS’ AWARD
À tous les professionnels du droit,
Alors que les événements reliés au COVID-19 continuent de se développer, l’équipe de LexisNexis Canada propose
des nouvelles juridiques, des analyses et d’autres ressources clés spécifiquement conçues pour soutenir votre prise de
décision et vos conseils sur les questions relatives au COVID-19.
Ces ressources juridiques comprennent des conseils aux employeurs sur leurs obligations pendant une pandémie, sur
les principales implications de la COVID-19 pour les entreprises publiques canadiennes, sur les ententes et accords
commerciaux, sur les communications en gestion de crise, etc. et c’est pourquoi, nous vous offrons un accès gratuit au
contenu COVID-19 sur Lexis Practice Advisor®.
Veuillez visiter lexisnexis.ca/covid-19 pour profiter de ces ressources ou cliquez sur les liens suivants :
• The Lawyer’s Daily News & Analysis on COVID-19
• Lexis Practice Advisor Coronavirus Guidance for Canada
*Le contenu de Lexis Practice Advisor et du Lawyer’s Daily est disponible en anglais seulement
À fur et à mesure que la situation évolue au Canada et dans le monde, nous continuerons à mettre à jour des
informations et des ressources, à la disposition des personnes qui se trouvent en première ligne de la pandémie de
COVID-19. Nous comprenons l’impact et l’importance de la communauté juridique en période de difficultés sociales et
économiques, et nous croyons fondamentalement que vos efforts sont essentiels pour maintenir la primauté du droit et
revenir à la normale le plus rapidement possible.
Je tiens également à vous assurer que LexisNexis Canada a mis en place des pratiques visant à garantir la même qualité
d’information et de service que celle à laquelle vous vous attendez. Veuillez communiquer avec votre représentant de
LexisNexis Canada si vous avez des questions ou si vous rencontrez des problèmes d’accès.
Cordialement,
Eric Wright
CEO, LexisNexis Canada
8 Nova Voce • SPRING 2020 CBA Nova Scotia
ZOË ODEI YOUNG LAWYERS’ AWARD
To our legal community,
As COVID-19 events continue to unfold, the LexisNexis Canada team is working to deliver legal news,
analysis, and other key resources specifically geared to support your decision-making and counsel on
COVID-19 matters.
Therefore, we are offering no-cost access to COVID-19 related content from Lexis Practice Advisor® which
includes guidance for employers on their obligations during a pandemic, key implications of COVID-19 for
Canadian public companies, insight on commercial deals and terms, crisis communications, and more.
Please visit lexisnexis.ca/covid-19 to take advantage of and share these resources, or click below:
• The Lawyer’s Daily News & Analysis on COVID-19
• Lexis Practice Advisor Coronavirus Guidance for Canada
As the situation evolves in Canada and around the world, we will continue to make up-to-date information
and tools available to those on the front lines of the COVID-19 pandemic. We understand the impact and
importance of the legal community in times of social and economic difficulty, and fundamentally believe that
your efforts are essential to maintaining the rule of law and returning to normalcy as quickly as possible.
I’d also like to reassure you that LexisNexis Canada has practices in place to ensure the same high quality of
information and service you’ve come to expect. Please contact your LexisNexis Canada representative if you
have questions or encounter any access issues.
Sincerely,
Eric Wright
CEO, LexisNexis Canada
The voice of the legal profession Nova Voce • SPRING 2020 9ABORIGINAL LAW
IMPLICATIONS OF COVID-19 ON
INDIGENOUS PEOPLES HEALTH
and clinics, other communities must appreciate the urgent need to assist First
VICTOR travel to neighbouring communities to Nations, Inuit and Métis nations in all
RYAN
access care. This becomes even more jurisdictions in crafting an effective
Burchells LLP pronounced in Newfoundland and response to COVID-19. The Minister
Labrador, where residents of coastal Innu of Indigenous Services has announced
and Inuit communities in Labrador must millions of dollars in funding, in both
often fly hundreds of kilometres to access new and existing areas, to meet the
All across the country, individuals,
the nearest hospital. This uneven access needs of this crisis. As with many
industry and government are taking
to basic health care will undoubtedly Crown announcements of funding, it
extraordinary measures to contain the
be exacerbated in the event of a sharp is unclear at this point how these funds
spread of COVID-19. The threat posed by
increase in COVID-19 cases. will be distributed among Indigenous
this global pandemic is felt everywhere,
communities, and how quickly the funds
and Indigenous communities, The social determinants of health will also will be released where they are needed
governments and nations are no different. play a role in Indigenous communities’ most.
Some communities will be better prepared ability to respond to the COVID-19
than others, and some communities pandemic. In some Indigenous The influx of COVID-19 has demonstrated
contain unique, compounding factors communities, a lack of housing and that the federal government has the
that render them particularly susceptible other vital infrastructure investments capacity to react swiftly and forcefully
in the fight against COVID-19. Still, the from the Crown has led to issues like in the face of a crisis where the political
impact of this pandemic on the health overcrowding, a lack of reliable drinking will to do so exists. In order to properly
and well-being of First Nations and Inuit water, and food insecurity. In an era and adequately support Indigenous
communities in Atlantic Canada cannot where social distancing and frequent communities, nations and government
be separated from the ongoing, persistent hand washing have become critical health to respond to COVID-19, that political
crises in relations between Indigenous care tools, some Indigenous communities will has to extend towards large, systemic
nations and the Crown. face large structural disadvantages that investments in health and infrastructure.
will impede an effective response to the This should ensure that not only is
Across Atlantic Canada, Indigenous
rapidly spreading virus. the COVID-19 crisis dealt with, but
people face a spectrum of access to
the underlying disparities that placed
reliable, culturally competent health care. It is encouraging that the federal Indigenous communities at higher risk
While some First Nations communities government appears to recognize and for COVID-19 are also eradicated.
may have their own health care centres
10 Nova Voce • SPRING 2020 CBA Nova ScotiaCHARITIES AND NOT-FOR-PROFIT LAW
CONSIDERATIONS FOR
CHARITIES AND NOT-FOR-PROFIT
ORGANIZATIONS IN LIGHT OF COVID-19
workplaces have moved to remote- $58,700 of an employee’s salary for qualifying
SELINA working operations. If this is not feasible, businesses including not-for-profit
BATH
employers should take steps to maintain organizations, charities and certain Canadian
Wickwire Holm social (or physical) distancing which may Controlled Private Corporations (CCPCs).
include rearranging workstations to ensure The subsidy is for a period of up to 3 months,
a minimum physical distance between retroactive to March 15, 2020. Information
employees, staggering work hours to relating to eligibility criteria and delivery of
As COVID-19 continues to impact our
minimize contact between employees, and the program continues to evolve.
daily lives, charities and not-for-profit
directing that all meetings be conducted The CRA’s Charities Directorate has extended
organizations face unprecedented demands.
virtually. the filing deadline to December 31, 2020 for
In carrying out their purpose and assisting
those in vulnerable positions, they must Governance all charities with a Form T3010, Registered
remain nimble and responsive in a situation As we strive to maintain social (or physical) Charity Information Return due between
that is rapidly changing. This article discusses distancing, many organizations will wonder March 18, 2020 and December 31, 2020.
4 key considerations in these uncertain times. how to handle meetings, including upcoming This allows charities more time to complete
annual general meetings. To determine what and submit their T3010 as their resources are
Closure of non-essential workplaces
procedures are permissible, organizations deployed to address the effects of COVID-19.
Nova Scotia declared a State of Emergency
must first look to their governing legislation. The Charities Directorate has suspended
on March 22, 2020. As a result, many non-
This may be the Canada Not-for-profit operations until further notice. This includes
essential workplaces have been ordered to
Corporations Act or provincial legislation the call centre as well as all registration and
close to reduce the spread of COVID-19.
such as the Nova Scotia Societies Act or audit activities.
While some charities and not-for-profit
Companies Act. Look to the organization’s
organizations may fall under the provincial Conclusion
constituting document (such as by-laws) to
list of essential services, many will be required The situation continues to change rapidly
determine which applies. The organization’s
to close. Non-essential businesses may with new information and directives being
by-laws may also set out requirements for a
continue to operate if employees are able to announced almost daily. Charities and not-
meeting of directors. Alternatives to in-person
work remotely or through other contingency for-profit organizations are reminded to stay
meetings may include virtual meetings, in-
measures. informed of and follow government orders
person meetings with remote access options,
Employment matters or a hybrid of in-person and virtual. Whatever and directives.
Occupational health and safety legislation method you choose it is incredibly important Editor’s Note: On April 11, 2020, the provincial
requires employers to take precautions at this time to communicate with directors government issued a Direction of the Minister (20-
to provide a safe work environment for and shareholders how the organization is 004) regarding Shareholder or Member Meetings
employees. In the circumstances of this carrying on its obligations and directives. which allows annual general meetings to be
global pandemic, that includes taking steps deferred or held virtually. Further details can be
Finances
to reduce the risk of COVID-19 exposure found at https://novascotia.ca/coronavirus/
The Federal Government has announced
and transmission in the workplace. Many docs/Ministers-direction-EMA-AGM.pdf.
a wage subsidy of up to 75% on the first
The voice of the legal profession Nova Voce • SPRING 2020 11CITIZENSHIP AND IMMIGRATION LAW
COVID-19 TRAVEL TIPS
As of now, temporary foreign workers
that do not fit into one of the above
FOR FOREIGN NATIONALS
categories (for example, foreign
nationals who would like to work under
a work permit exemption category,
those who hold work permit support
letters issued by the Province, and those
who are coming with Labour Market
Impact Assessment approvals), are not
permitted to travel to Canada. These
people would have neither a work
or approval letter prior to travelling permit nor a work permit approval
SARAH to Canada (provided they have been in letter. In other words, foreign nationals
MCINNES travelling from outside the U.S. will not
the U.S. for at least 14 days); as such,
McInnes Cooper foreign nationals travelling from the be able to apply for a work permit at the
U.S. are entitled to apply for a work Port of Entry.
permit at the Port of Entry. While the
Order only prohibits travel for optional In effect, air operators are being asked to
We seem to be hearing the same key apply immigration policy to determine
or discretionary purposes, a Canada
phrases over the last few weeks: this which travelers are authorized to travel
Border Services Agent (CBSA) has the
is “unchartered territory,” and, these to Canada under one of the Orders in
discretion to determine whether to issue
are “unprecedented times.” This is Council. In the past few weeks, this has
a work permit and may refuse to issue
particularly the case for immigration resulted in a lot of confusion, inaccurate
work permits to individuals whose travel
lawyers trying to understand and apply assessments, missed flights, frustration
to Canada is deemed non-essential.
interim travel restrictions for foreign and angst. While we continue to seek
nationals, which have been rolled out The Order for travel from any country clarity on how the travel restrictions are
quickly and patchily. While clarification other than the U.S. is in force until being applied by both air carriers and
is still being anticipated, here are some June 30, 2020, and prohibits all travel CBSA, here are some tips for foreign
tips from immigration lawyers for travel to Canada unless the foreign national workers travelling to Canada at this
to Canada during the pandemic. holds a valid work permit or a work time:
permit approval letter, or meets one
On March 26, 2020, the Canadian 1. Employer confirmation: Foreign
of the narrow exemptions provided
federal government released two Orders workers with valid work permits
in the Order. These exemptions were
in Council pursuant to the federal or work permit approval letters are
identified as preserving life, health and
Quarantine Act to provide guidance for technically exempt from the travel
basic societal functioning and includes,
travel to Canada. ‘ban’, but they must also carry: the
but is not limited to, providers of
emergency services for the protection employer’s confirmation it’s still
The Order for travel from the U.S., operating and is not subject to
initially in force until April 21, 2020, or preservation of life or property
(i.e. firefighters and medical service mandatory closure of non-essential
and recently extended for 30 days, businesses; confirmation the job is
prohibits entry from the U.S. for foreign providers); workers in the marine
transportation sector who are essential still available; and an explanation of
nationals who wish to enter Canada for why they need to travel to Canada
an optional or discretionary purpose for the movement of goods by vessel;
and persons delivering, maintaining, or at this time, since all non-essential
(tourism, recreation and entertainment). travel, even if it’s work-related, is to
The Order for travel from the U.S. repairing medically necessary equipment
or devices or making medical deliveries be avoided. Port of entry applicants
does not require temporary foreign should carry similar documentation.
workers to have a valid work permit required for patient care in Canada.
12 Nova Voce • SPRING 2020 CBA Nova ScotiaCONSTITUTIONAL AND HUMAN RIGHTS LAW
2. Medical Clearance: Canada’s federal are they going to have groceries Program (TFWP) that specifically
government is asking airline delivered? If the worker is exempt exempt seasonal agriculture workers
operators to conduct a health check of from the self-isolation requirements, and seafood processors from the
all air passengers travelling to Canada bring the relevant self-isolation COVID-19 travel ban and has
from international locations. To exemption order issued by the temporarily modified the Labour
reduce the chance a foreign worker province of destination. Market Impact Assessment (LMIA)
is held back for health reasons, it will process to waive the required 2-week
be helpful if they carry recent medical 4. Family Members: If a foreign worker recruitment period for the next 6
evidence confirming their health. plans to travel to Canada with months. Employers hiring workers
immediate family members, they will under the TFWP can also increase
3. Self-isolation Plan: CBSA is doing its need authorization from a consular the maximum employment duration
best to ensure travelers to Canada officer, as family members of foreign for workers from one to two years,
adhere to the 14-day self-isolation nationals do not meet one of the intended to improve flexibility and
rule implemented by the federal exemptions under the Orders in reduce the administrative burden
government. In order to assist, have Council. for employers. Specific instructions
a self-isolation plan ready addressing for agricultural workers under
5. Seasonal Temporary Foreign
key questions like: Where are they the Seasonal Agricultural Worker
Workers: Employment and Social
self-isolating? How are they going to Program and the Agricultural Stream
get to their accommodations without Development Canada (ESDC)
has implemented changes to the are being developed, with more
being in contact with anybody? How details to follow.
Temporary Foreign Worker
STAYING HOME
REFLECTING ON MOBILITY RIGHTS IN THE CONTEXT OF THE NOVA SCOTIA /
NEW BRUNSWICK BORDER MEASURES DURING THE COVID-19 PANDEMIC
As we grapple individually and people in jails and prisons.
MARY collectively with what this means
ROLF And then there’s the matter of living
on a practical level, it’s clearer than
Barteaux Laywers ever that it’s a privilege to be able to on one side of a provincial border and
restructure your life so you don’t need working on another.
to go anywhere. Working from home Generally, our provincial borders aren’t
arrangements, online grocery ordering that noticeable. They’re a blink-and-
Until recently, if someone had asked me
and delivery, resources to occupy you’ll-miss-the-sign landmark out the
“How do you move through the world?”
yourself or your kids at home while window on your last road trip. But on
I would have assumed the question was a
schools and parks are closed – these are March 22, 2020 when the Government
figurative one. COVID-19 has served as
things to which not everyone has access. of Nova Scotia declared a state of
a stark reminder of how literal and vital
The fact is someone needs to pick and emergency in response to COVID-19
this question really is as we confront
pack that ‘click and collect’ order. Even and announced increased screening
the reality of government and public
the privilege of social distancing is not and restrictions on social travel to
health directives to stay home except for
available to all, thinking especially of
essential outings.
people accessing emergency shelters and CONTINUED ON NEXT PAGE
The voice of the legal profession Nova Voce • SPRING 2020 13CONSTITUTIONAL AND HUMAN RIGHTS LAW
CONTINUED FROM PREVIOUS PAGE (a) to move to and take up services. And of course, all measures
residence in any province; and that infringe the Charter must meet the
Nova Scotia, the border between Oakes test and be in accordance with the
New Brunswick and Nova Scotia was (b) to pursue the gaining of a principles of fundamental justice.
suddenly not so invisible, particularly livelihood in any province.
to people who cross it every day for Third, section 6 as a whole is not subject
(3) The rights specified in subsection to the notwithstanding clause at section
work. New Brunswick followed suit on
(2) are subject to: 33 of the Charter. The notwithstanding
March 25, 2020, setting up checkpoints
and prohibiting non-essential travel into (a) any laws or practices of clause only applies to sections 2 and
the province. Many vehicles have been general application in force in 7-15.
refused entry into New Brunswick1 and a province other than those Perhaps most importantly in thinking
essential service workers face long lines that discriminate among about COVID-19 interprovincial border
to pass through the checkpoints. persons primarily on the basis restrictions, section 6 does not clearly
of province of present or enshrine a general right to freedom
The bottom line is that there is a lot of
previous residence; and of movement between provinces for
personal and political tension around the
ways we are being asked to move or not (b) any laws providing for all purposes. Even if a court were to
move during the COVID-19 outbreak. reasonable residency interpret the COVID-19 measures as
Thinking about this tension caused me requirements as a qualification a prima facie section 6 violation, the
to consider the mobility rights enshrined for the receipt of publicly Oakes analysis would be strengthened
in section 6 of the Charter. Like our provided social services. by the pressing and substantial public
provincial borders, section 6 has never health objectives during a pandemic.
been that noticeable to me. Let’s face Key Points in Applying Section 6(2)
However, the Charter reflects Canadian
it, there are more “happening” sections
There are a few things to note about the values, including personal autonomy and
of the Charter to litigate and discuss,
application of section 6(2). self-determination which are closely tied
including those perennial constitutional
to our mobility rights. Many of us have
law chart-toppers at sections 2, 7, and First, the Supreme Court of Canada has family, friends, colleagues, and clients
15. considered the issue of interprovincial in New Brunswick and elsewhere. It is
work and confirmed that interprovincial disconcerting to know that for the most
Section 6(2)(b) and COVID-19
border commuters do not need to part, right now we are physically cut off
The issue of living and working across establish residency in their province from some of our nearest neighbours,
provincial boundary lines crystallizes of employment in order to have a even if out of necessity.
in subsection 6(2)(b) as modified by guaranteed right to work.2
subsection 6(3): For now, one of the best things we can do
Second, section 6(2) is subject to both is “stay home together”. It’s daunting, but
6. (1) Every citizen of Canada has the an internal limitation in subsection necessary to support the effort to flatten
right to enter, remain in and leave 6(3) and to the standard external the curve. In the meantime, it helps to
Canada. limitation in section 1. With respect to remember that physical distance doesn’t
the internal limitation, laws or practices mean social isolation. Community looks
(2) Every citizen of Canada and every must not discriminate primarily on different right now, but it’s still there.
person who has the status of a the basis of residency except where
permanent resident of Canada has reasonable residency requirements serve
the right as eligibility criteria for public social
1
CBC News, “N.B. COVID-19 roundup: Community transmission now confirmed in province” (March 30, 2020), online: CBC News https://www.cbc.
ca/news/canada/new-brunswick/coronavirus-covid-19-pandemic-1.5514557.
2
Black v Law Society of Alberta, [1989] 1 SCR 591 at paragraph 61.
14 Nova Voce • SPRING 2020 CBA Nova ScotiaCCCA
COVID-19 AND THE ROLE OF
IN-HOUSE COUNSEL
caused previously unknown disruption to for companies involved in export and
DAMIEN commercial operations, relationships and international sales include forum conveniens
BARRY
supply chains. This has severely impacted as well as the ability to enforce contract
Louisburg Seafoods the ability of parties to perform their breaches. It is certain that unforeseen
Group
contractual obligations. This in turn has contractual issues that arise during the
led many companies to invoke force majeure current global crisis will be explicitly
clauses in contracts where applicable. outlined and identified in future contracts.
In-house counsel play a critical role Force majeure clauses identify and define
within private and public companies and In-house counsel also must be conscious
circumstances beyond the parties’ control of labour and employment laws and
are responsible for many functions such that can render contractual performance
as risk compliance, intellectual property regulations in their provinces of operation
too difficult or ultimately impossible. during this uncertain time. Questions such
management, government relations, Where an event, or series of events, triggers
restructurings, corporate secretarial, as:
a force majeure clause, the party invoking
and labour and employment. With the the clause may look to suspend, defer, or be • can I compel employees to come to work
suspension of all major worldwide economic released from its duties to perform without at this time;
activity, in-house counsel are now being liability. • am I obliged to allow my employee to
called upon to provide advice across various
Force majeure clauses will generally identify work from home; and
areas of law, including contract, labour and
employment, immigration and privacy, events such as fire, flood, explosion, • must I report any suspected COVID-19
among others. earthquake, or other natural forces, war, cases involving an employee to the
civil unrest, any strike or labor disturbance, relevant government authorities
Aside from providing legal advice, in- as well as pandemics or public health
house counsel are also faced with the are all pertinent issues that have arisen
emergencies. Once an identifying event has recently.
challenge of providing objective advice been confirmed, notice periods, causation
and recommendations to colleagues and and mitigation will then be considered. It In addition to labour and employment
friends within companies and non-profit is also important to note that the inclusion issues, there may also be privacy issues
organizations during a time of heightened of a force majeure clause will generally only involved, particularly when compelling
anxiety and stress. Many organizations delay the performance of the contract whilst employees to self-identify or when actual
are facing the grim reality of layoffs, and the identifying event is ongoing. cases of COVID-19 have been identified
are questioning whether they will be able within the workplace. Within the fisheries
to continue operating in the future. In In the absence of a force majeure clause, sector where my company operates, we
short, with the outbreak of the COVID-19 contractual parties may rely on the common also face the challenges associated with
pandemic, in-house counsel face new and law doctrines of frustration of contract being identified as an essential service in
ever-changing challenges each day. or impossibility of contract to seek to food production, whereby employees are
discharge themselves from performance of still able to work in our various processing
The inability to continue operations in the a contract. Other contractual considerations
manufacturing and processing sectors has plants where possible. Familiarity with
CONTINUED ON NEXT PAGE
The voice of the legal profession Nova Voce • SPRING 2020 15CRIMINAL JUSTICE
CONTINUED FROM PREVIOUS PAGE
pandemic. With the marked increase in given not only involves the drafting of a
legislation in relation to employment, employees working from home, Michelle policy or guidelines but on a more practical
privacy and health and safety, as well as is now advising managers on how to level involves trying to alleviate colleague’s
government directives and policies is coordinate approximately 50 employees anxiety and stress levels, especially in these
essential in these situations. working from 50 different locations and uncertain times.
In addition to private and public companies, ensuring that all policies and infrastructure In conclusion, in-house counsel have a vital
in-house counsel also have a vital role to are in place to support this new reality. role to play in advising organizations and
play in advising public and non-profit In addition to providing legal advice, companies during the current COVID-19
organizations during these challenging Michelle, like many other in-house counsel crisis. In addition to providing ongoing legal
times. Michelle McCann is Director for Risk at this time, is called upon to provide advice, we also have to deal with the realities
and Legal Services at the QEII Foundation more practical advice to colleagues in her of significant economic and financial
in Halifax and also advises many smaller organization. As Michelle notes, when impacts on our companies, organizations
non-profit and charitable groups in her private practitioners are called upon to and colleagues, as well as reacting on a daily
private practice. provide legal advice to organizations, they basis to the ever-changing economic and
Michelle’s role with the QEII Foundation can do so and then move on to advising societal challenges being faced during this
usually involves her offering advice and their next client. With in-house counsel, we pandemic. In short, we have to offer advice
guidance primarily on policy and human are more often than not advising colleagues to ensure that the proper decisions are
resources matters. With the outbreak of who we interact with every day and as such, being made to safeguard not only the future
the COVID-19 crisis, Michelle has been in addition to providing legal advice, we of our companies and organizations, but
called upon to review all existing policies are also involved in helping to implement also those of our employees and colleagues.
in place as well as draft and advise on new the same advice across our organizations.
policy directives to deal with the current More often than not, the advice that is
SUPPORTING
THE VULNERABLE
much better positioned than my clients things are going smoothly. I can afford
TAMMY to face the COVID-19 crisis. to keep my pantry, freezer, and medicine
WOHLER
I can work from home in a house and cabinet well-stocked, (not to mention
Nova Scotia Legal Aid the space in the basement we jokingly
property that allows for breathing space
– my husband and teenage boys are self- call “the wine cellar”). I have plenty of
sufficient and we can spend as much time options for wellness, free or otherwise,
together or apart as we like. Even going and the education and training to
As a lawyer representing low-income
into our second month of staying home, know of the importance of focusing on
persons, I am keenly aware that I am
wellness during this time.
16 Nova Voce • SPRING 2020 CBA Nova ScotiaCRIMINAL JUSTICE
The pandemic has highlighted that I community supports to meet basic food suspended and virtual access requires
have a life of privilege and means. A life needs. They are never “stocked up” and technology that lower-income persons
of many choices and few barriers. make choices monthly about what they may not possess. With children in care,
For those facing income and housing can do without and which bill they can lower-income families stop receiving
insecurity, the COVID-19 pandemic put off paying a little while longer. They a significant portion of their income
not only highlights but exacerbates their are not making trips to Costco for crates – the child benefit. In smaller centres
everyday challenges and barriers. In of food, toilet paper, Lysol, or anything and rural areas, finding a lawyer for
HRM, persons with lower incomes tend else. Bulk buying requires money they do child protection proceedings is already
to require housing with lower monthly not have. a significant challenge. And so the
rents. The availability of affordable rental If they chose to “rob Peter to pay Paul” stressors increase.
properties in the city is incredibly low, – decide that food and supplies is more As the challenges rise up, so too do the
and what lower rent properties do exist important than rent in case of a lock- people of our province. Individuals,
can often be in smaller, more densely down or empty grocery shelves – they communities, advocacy groups, service
populated areas and buildings. This, in will fall into arrears and risk eviction. agencies, government departments,
turn, increases the risk of exposure at a The eviction freeze is a limited one – it political leaders, the judiciary and court
time of a highly contagious pandemic. does not protect those receiving fixed staff, lawyers and legal support staff;
Social media is running amok with benefits such as income assistance or everyone is coming together - even
stories of panic-shopping and hoarding CPP-Disability benefits. It does not while social-distancing - to support
necessary supplies for personal or, protect those diverting their limited persons and families in need.
worse, financial gain. Some is panic and income to different basic necessities In particular, the legal profession and the
overreaction. The reality is that we do because of COVID-19. courts are working together to ensure
need to stock up – to be ready. The harsh Between increased financial pressures emergency matters are addressed (such
reality in Nova Scotia, however, is that and severe restrictions on our as child protection) and to limit the
many families – and numerous children movements, high conflict families will numbers of people incarcerated, which
– cannot adequately prepare for this be under greater stress and without the will limit exposure – areas which often
pandemic. means or ability to remove themselves impact lower-income and marginalized
For those living beneath the poverty easily, if at all, from a volatile situation. segments of our province the most.
line, the fall-out of COVID-19 will be Supports for such families, such as anger Efforts are being made to limit the
immense. Local community resources management programs, have been impact of this crisis on the justice system
are closing doors, food banks are in need, suspended. News reports suggest an – with the needs of the most vulnerable
and libraries, a valuable free resource increase in domestic violence reports. at the forefront.
and means of accessing technology and While domestic violence and conflict As a profession and as individual lawyers,
the internet, are shut down. Some of affects those in all socio-economic we should always be looking at what we
the poorest in our province do not have brackets, the opportunities to access can share with those less fortunate – less
phones with which to seek help. Others services or to implement a plan to leave lucky – in our communities than us. We
have smart phones that work only when safely increases with socio-economic have time, talent, and resources to share,
they access free Wi-Fi, such as at a local status. now and later.
coffee shop or fast food restaurant – An increase in domestic violence leads This health crisis will end. Our work to
businesses that are now closed to walk- to an increase in child protection support the vulnerable in our society
in patrons or closed altogether. investigations, interventions, and the should not.
Income assistance is typically insufficient taking of children into care. Children
to cover all monthly expenses. Families in care during the COVID-19 crisis face
rely on the local food banks or other significant hurdles in having access with
their parents. In-person access is largely
The voice of the legal profession Nova Voce • SPRING 2020 17ELDER LAW
LOOKING OUT FOR
THE ELDERLY
isolation to a population that is already Directive. Can I witness the execution
GRACE so prone to these issues. We have seen of these documents remotely?”. The
MACCORMICK
some facilities moving to creative NSBS’s response should be reviewed
Patterson Law solutions to address the situation, frequently as it continues to be
offering visits through windows updated.
and using more virtual methods
of connection.3 Unfortunately, the Given current restrictions, the Wills,
We are all aware of the enormous Estates & Trusts Section of the
window visits have had to be curtailed
impact that COVID-19 has had on Canadian Bar Association – Nova
in recent days.4 This underscores our
both our personal and professional Scotia Branch has written to the
need to be creative in our support
lives. Now, more than ever, is a time Minister of Justice to seek a relaxation
for the elderly population. This
to look out for others. As we have of the strict requirements of the
situation is constantly evolving and
seen, older adults appear to be more Wills Act, RSNS 1989, c 505. In the
we must evolve with it as methods of
vulnerable to becoming severely ill meantime, we will start to see more
contact and communication that were
with the virus.1 According to the US holograph wills and “other writings”
acceptable one day become impossible
Center for Disease Control, 8 out of as permitted by sections 6(2) and 8A of
the next.
every 10 deaths in the US have been in the Wills Act. Those of us who practice
adults 65 years or older.2 From an elder As practitioners, we should also on the litigation side of the estate law
law perspective, we must recognize be more creative in our offerings practice should be prepared to see
that the potential vulnerabilities of our of service to our clients. The Nova more contested matters surrounding
clients extend beyond the physical to Scotia Barristers’ Society has posted these types of documents in the
increased risks of elder abuse, social a list of frequently asked questions coming years.
isolation, mental health decline, and and answers on its website to assist
undue influence. lawyers in providing effective service
in the context of the COVID-19
Long term care facilities in Nova Scotia
pandemic.5 One of the questions
have been closed to visitors. This
posed is, “My client requires a Will,
brings increased emotional and social
Power of Attorney, and/or Personal
1 https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public/myth-busters
2 https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-risk-complications/older-adults.html
3 https://www.cbc.ca/news/canada/nova-scotia/nursing-homes-covid-19-health-care-1.5500555
4 https://www.cbc.ca/news/canada/nova-scotia/some-ns-nursing-homes-end-window-visits-amid-covid-19-1.5536823
5 https://nsbs.org/covid-19-questions/
18 Nova Voce • SPRING 2020 CBA Nova ScotiaELDER LAW
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Free for all real estate lawyers in Nova Scotia.
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Register for free at www.ldd.ca.
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LawyerDoneDeal Corp. profession
and Design are trademarks of LawyerDoneDeal Corp. Nova Voce • SPRING 2020 19
® LawyerDoneDeal is a registered trademark of LawyerDoneDeal Corp.EQUITY AND DIVERSITY
EQUITY CONSIDERATIONS
DURING A PANDEMIC: IMPACTS OF COVID-19
Health Association of African Canadians you can afford hundreds of dollars of
ANGELA have been conducting weekly webinars groceries at a time, these restrictions are
SIMMONDS
to discuss the impacts of COVID-19. much easier for you to follow.
Nova Scotia Many individuals, including myself,
Barristers’ Society But the reality of social distancing looks
have participated in these conversations very different for someone in a one-
and also raised concerns regarding bedroom apartment, in a huge building
the disparities between African Nova with limited scenery. Trying to keep your
Like so many Nova Scotians, I have
Scotian and Indigenous communities’ children quiet, with no in-suite laundry
been following the press releases,
housing, finances and care resources space and only a few dollars at a time to
news updates, and commentaries
when compared with more privileged buy groceries are just some examples of
surrounding the COVID-19 pandemic.
communities. Because of this, these the ways in which social distancing and
Currently all provinces and territories
restrictions will likely affect these limiting your trips out are much more
have declared some sort of state of
communities differently. difficult. A month inside for that person
emergency, restricting social gatherings
and shuttering businesses like bars and The behaviour of Black or Brown people looks a whole lot different and is a lot
restaurants. This pandemic has brought is often interpreted as “hazardous or more draining on mental and emotional
into sharp focus the continued inequities unsafe”, which makes individuals more health.
between races, classes, genders and ages. likely to be reported on by neighbours and The reality is that we know those who
We have listened to Dr. Robert Strang, confronted by authorities. There are also have lost jobs or had their hours greatly
Nova Scotia’s chief medical officer, cultural norms, like sharing care of each reduced, and the reality is that most
indicate we have a narrow opportunity others’ children, looking after elders in people are not in a position to earn no
to mitigate the impact of COVID-19 by our communities, and travelling between income for months. There are also many
practicing social distancing. Nova Scotia Black and Indigenous communities that service-oriented jobs still requiring
defines social distancing as follows: are differentially impacted by the public employees to attend and with no options
limiting your contact with other people health restrictions in place. for child care in a single parent home this
and staying about 2 meters (6 feet) apart. In addition, asking individuals to self- creates additional barriers and stress.
Essentially, social distancing asks us isolate can be very complicated for some. If COVID-19 policies are going to
to actively avoid gatherings and large It assumes everyone has equal access to respond to the needs of those individuals
events, and to minimize close contact space and resources. If you live in a big impacted the most there must be access
with others. house and you have a yard with a swing to information, equitable access to
The restrictions against gathering will set for your kids to play outside or you resources and supports. For example,
have a particular impact on Black and have a downstairs area to escape to when so many people rely on community food
Indigenous Peoples. We know from you need alone time, practicing social programs like the Dartmouth North
the data released on street checks that distancing is much easier. If you have Food Centre who support individuals on
racialized people, in particular African a laundry room and aren’t reliant on and off Mi’kmaq communities as well as
Nova Scotians, are disproportionately community laundromats, and can afford other marginalized communities. With
targeted by police in our community. The to keep a freezer full of food because the Centre closed and not being able to
20 Nova Voce • SPRING 2020 CBA Nova ScotiaYou can also read
