Estate planning in a time of uncertainty

by | Mar 19, 2020 | Articles & Research, Covid-19, Succession Planning, Wills, Estates, Trusts, Health Care Directives and Powers of Attorney

As the world changes in response to the coronavirus (Covid-19) outbreak, you may wonder how you can legally best protect yourself, and loved ones. The present is a good time to make certain that you have certain crucial legal documents in place.

Last Will and Testament

Every adult should have a Will in place at all times. The Will ensures your instructions are honoured after your passing. You will name a party to be your executor, and you will clearly set out the terms you wish for the distribution of your property. It is encouraged that you consult a lawyer in drafting your Will, to ensure the Will is not easily challenged, or subject to misinterpretation.

Power of Attorney

With the advent of Covid-19, many people may need to provide care to elderly parents. If your parents wish you to make such decisions, it is very important that you have the legal authority to do so.

The legal way to confer such decision making power is through a power of attorney, naming someone as the “attorney”. A grantor should only choose someone you trust implicitly – you will be giving them immediate power over your banking, money, and property.

If someone has an illness such as dementia or Alzheimer’s, and is therefore already unable to make their own decisions, they will not be able to validly name an attorney. Instead, a loved one may need to seek a court-appointed guardianship order to be able to make decisions on their behalf.

Health Care Directive

A Health Care Directive allows you to express your wishes regarding medical treatment. This document can become important if you later lose the ability to speak or communicate. The Health Care Directive will name a proxy to make medical decisions for you.

Making sure that you have signed the above legal documents to better protect yourself is a means to exert control in this time of uncertainty. And given the current impetus to stay at home, what better time to deal with estate planning? For any specific questions, readers are encouraged to consult a lawyer.

The above is for general information only. Parties should seek legal advice prior to taking action in specific situations. Robertson Stromberg LLP offers legal advice and representation in all areas of law, including experience in estate planning, and estate litigation.

COVID 19 and Co-Parenting

by | Mar 19, 2020 | Articles & Research, Covid-19, Family Law, Kirsten M Hnatuk

Introduction

COVID-19 is creating uncertainty across the world and in our homes. Amid school and daycare cancelations, altered work schedules, self-isolation and growing health concerns, parents have been especially impacted by the pandemic. Separated and divorced parents are faced with the additional challenge of parenting their children between households during this time. The following is intended to provide information and considerations for separated and divorced parents. This information is not intended as legal advice. Should you have any questions respecting family law related matters we recommend that you consult with a lawyer.

Parenting Orders and Agreements

Parenting arrangements that are set out in Agreements or Court Orders should continue despite the pandemic. While the Courts in Saskatchewan have not yet had the opportunity to address this issue, it is expected that parties to an Agreement or Court Order will abide by the terms of the Agreement or Order. In a recent ruling in the United States it was determined that Court Orders for parenting time are not impacted by COVID-19; it is expected that our courts would take the same position. It is important for children to continue to have consistency and ongoing relationships with each of their parents, especially in times such as these when children may be especially anxious. Relying on the pandemic as reason to deny parenting time is not reasonable; it is not an opportunity to “cut out” the other parent. What the Courts will want to see is parents coming together during a time of uncertainty to act in their children’s best interests.

In extraordinary cases where there may be imminent risks to the children, parenting arrangements may need to be altered. Examples of which might include, where a parent has recently travelled to a high risk area, where a child has compromised immunity, where a parent or child has been in close contact with someone diagnosed with COVID-19, or if the parent or child has COVID-19 symptoms or has been diagnosed with COVID-19. If one of these exceptions exists, it is important that you communicate with the other parent and attempt to reach a resolution that safeguards the health of all involved. If you are unable to reach a resolution, or have questions about what constitutes an extraordinary circumstance, you should contact a lawyer.

Communication

With the closure of schools and daycares, the reality is that many parents will have to alter their parenting arrangements. This is a time for co-operation and flexibility to ensure that your children’s needs are being met. Important discussions should also be had between parents. Such discussions might include how to talk to your children about the pandemic, ensuring proper hygiene and handwashing in both households, whether to self-isolate the children, whether to avoid playdates, and what the plan will be if a child exhibits symptoms of COVID-19. The implementation of consistent COVID-19 precautions in both households will not only maintain stability for the children but will ensure that their health is foremost.

Self-Isolation

In the event parents determine that children or themselves should self-isolate, there are many ways in which children can communicate with the parent whom they are not with. In addition to texting and phone calls, electronic communication such as FaceTime and Skype allow children to maintain contact with their parents. Be creative and read books over the phone, play games such as “I spy” on FaceTime, or watch shows together on Youtube.

Conclusion

Children are looking to their parents for hope, safety and security during this time. Now more than ever it is important for parents to be civil and respectful to each other. Communicating with the other parent to ensure the well-being and stability of the children is vital. If this cannot be done, it is important to communicate through a third party to work out a sensible solution.

For more information, please contact:

 

Kirsten M. Hnatuk

306.933.1351

Email: [email protected]

Force Majeure Doctrine of Frustration – COVID-19

by | Mar 18, 2020 | Articles & Research, Covid-19, Lawyers, Marinko J Jelovic

Introduction

The novel coronavirus (COVID-19) continues to impact the lives of millions of Canadians and millions more around the world. Governments and communities worldwide have responded to this global health emergency by restricting travel and large public gatherings. Schools, restaurants and other businesses have been shutting their doors in response to contain the spread of the virus. In an effort to further curb the spread of COVID-19, many employees have been asked to work from home, further compounding the operations of businesses worldwide. Businesses and contractors may find themselves in a position where their ability to fulfill or perform a contract is hindered or rendered out right impossible due to the growing concerns and instability caused by COVID-19.

Force Majeure

In these uncertain economic times, it is important that business owners and contractors understand their contractual rights and obligations especially if they find themselves in a situation where fulfilling a contract becomes difficult or impossible. Business owners and contractors should carefully review their contracts to determine whether any relief is available under the contract, such as relying on a force majeure clause, or whether any other relief from the performance of their contractual obligations is available.   

A force majeure clause is often included in a contract to excuse performance by one or more parties to that contract on the occurrence of an event that is outside the contracting party’s control. Invoking the force majeure clause can potentially absolve a party from liability from performance of at least some of its contractual obligations under the agreement. A force majeure event typically refers to a circumstance beyond the control of one or more parties to a contract that causes performance of the contract to be frustrated or impossible to perform.  Such clauses can specify any number of these types of events and can include acts of God, riots, civil strife, acts of terrorism, labour strikes, natural disasters and epidemics.

Whether a party can claim relief from contractual performance will depend on the wording of the force majeure clause as courts are known to interpret these clauses narrowly. A force majeure clause may not expressly cover the events unfolding due to COVID-19, and it is important that the wording of the provision be carefully reviewed. Additionally, a party cannot rely on a force majeure clause to excuse its own conduct and may have an obligation to find alternative means to fulfill its contractual obligations even if it would cause delays or economic hardship to do so.

The Doctrine of Frustration

While it goes without saying that a party cannot rely on a force majeure clause if the contract does not contain one, this does not mean that a contracting party is without options in the event they find themselves unable to fulfill their contractual obligations and a force majeure clause is absent from the contract. A party to a contract may be relieved of its obligations and corresponding liability by relying on the common law doctrine of frustration. In order to rely on the doctrine of frustration, a party must show that an unforeseen event occurred that caused a material or radical change in performance of a party’s ability to fulfill its contractual obligations through no fault of either party to the contract. As with a force majeure event, the material or radical change is generally one that makes performance under existing circumstances impossible, impractical or frustrates the original purpose of the contract.

In Saskatchewan, the doctrine of frustration has been codified under The Frustrated Contracts Act.  In order to invoke the legislation a party must either show that the common law doctrine of frustration applies or the contract is one for the sale of specific goods and the goods under the sales contract have perished through no fault of the buyer or seller prior to risk being transferred to the buyer. In these circumstances parties may be relived from fulfilling their obligations under the contract.

The Frustrated Contracts Act will not apply to all types of contracts. Contracts of insurance, certain contracts for the carriage of goods by sea, and contracts entered into prior to March 28, 1994 are not covered under The Frustrated Contracts Act. These excluded contracts may be covered under separate legislation or the general principles surrounding the doctrine of frustration.  

Conclusion

The reliance on force majeure clauses or the doctrine of frustration will become much more prevalent while we navigate our way through the effects the global health emergency caused by COVID-19 will bear on our lives, our communities and the world. Each situation will need to be independently reviewed to assess whether a force majeure provision can be relied upon, provided the contract contains such a provision, or if a party can claim a remedy under the more general doctrine of frustration. It is important to note that not all situations will arise to a level where a contract has been frustrated or impossible to perform. Lengthy delays or incurring unforeseen economic hardships may not be a cause to claim frustration or rely on a force majeure provision. It is strongly encouraged that you seek legal advice to assess whether invoking a force majeure clause or the doctrine of frustration is an available remedy in the event you find yourself in a situation where you are unable to complete or perform a contract due to events outside of your control, including the impact COVID-19 is having on the global economy.

For more information, please contact:

 

Marinko J. Jelovic

Direct: 306.933.1322

Email: [email protected]

Considerations for Non-Profit Board Members in the times of COVID-19

by | Mar 18, 2020 | Articles & Research, Covid-19, Jennifer D Pereira, Lawyers

Introduction

The novel coronavirus (COVID-19) continues to impact the lives of millions of Canadians and millions more around the world. Many nonprofits and their boards are facing difficult questions and decisions. As matters rapidly evolve, boards needs to provide steady and flexible leadership in partnership with and in support of the CEO and organization in the areas of strategy, communication, finances, and human resources.

Strategy

Amongst its many responsibilities, boards must actively participate in an overall planning process for an organization and support the implementation and monitoring  of the plan’s goals. While the CEO is responsible executing these plans, the board should be reviewing and responding to the organization’s strategy, and providing feedback. It is crucial that the board and CEO consider the impact of COVID-19 on the organization. As the board reviews plans, it should consider:

  • How does COVID-19 impact the organization’s operations?
  • What mitigation planning is in place?
  • Is additional expertise required to manage any potential impact?

A variety of perspectives should be considered in developing a response including from a human resources specialist, a financial officer, and a lawyer. A response should be guided by the board but implemented by the CEO.  As stewards of the organization, the board must be sensitive to the existence of risk, set the tone for dealing with it, and ensure that proper processes and tools are in place to keep the organization safe and ready to act if a situation demands it.

Communication

As organizations try to plan for the future, the board, in partnership with the CEO, should be continuously monitoring the situation and assessing any potential risks that might arise as the COVID-19 issue evolves. These are challenging times, and it is important for the board and staff to come together and develop a plan that will help the organization survive. A crisis response plan might include a strategy to communicate with stakeholders, staff and the public and logistics for convening meetings.

Finances

Boards must be cognizant to impacts to the organization’s finances or investments. COVID-19’s impact on the economy remains uncertain, and the board and CEO must think about the organization’s ability to secure future grants or donations, what resources are required to adapt to recommendations for  social distancing, and how cancelled programs or fundraisers will influence the budget. This conversation should consider the short-term and long -term viability of the organization’s assets and whether the organization should run a deficit.

Human Resources

Every organization should have a plan in place if someone in the organization or a stakeholder accessing the organization’s services is diagnosed with COVID-19. The board should be updated on any decisions or policies made such as cancelling events or services or directing staff to work at home. As leaders, it is the role of the CEO and board to make sure that staff, stakeholders, and volunteers know how to protect themselves and the community.

The CEO and board may face a difficult decision in relation to maintaining levels of staffing during the crisis. AN understanding of the organization’s legal obligations to staff is critical in assessing whether changes are required.

Conclusion

Crisis response and communication planning is never done. Once a communication plan has been established, it is the board’s role to continue to support the CEO and organization. This means maintaining communication that is consistent with the organization’s response and supporting the CEO to manage the organization’s finances, relationship with stakeholders and staff.

For more information, please contact:

 

Jennifer D. Pereira, QC

306.933.1320

Email: [email protected]

COVID-19: Information for Employers

by | Mar 13, 2020 | Articles & Research, Candice D Grant, Covid-19, News, Small Business

Candice Grant has supplied a handout for employers giving them useful tips on how to manage the workplace during the Covid-19 pandemic.

Introduction

As an employer, you may have concerns about how to manage your business and protect the health and safety of your employees during the COVID-19 pandemic. Below, we have addressed some of the common questions we have heard from employers. This information, which is current as of the date of publication (March 13, 2020), is not legal advice and we recommend consulting with your legal advisors for advice which is specific to your business.

Occupational Health and Safety

The Saskatchewan Employment Act imposes upon every employer an obligation to ensure, insofar as is reasonably practicable, the health, safety and welfare at work of all of the employer’s workers. This obligation includes a requirement to take reasonable preventative steps to ensure that the health, safety and welfare of employees is not harmed by an infectious disease such as COVID-19 in the course of their employment.

What constitutes “reasonable” steps will depend on the nature of the workplace (for instance, whether the employees interact with members of the public, whether tools or electronics are shared with other workers, whether employees have an ability to work remotely). An employer should carefully consider the potential sources of risk to employees in the course of their work, and what reasonable steps might be taken to alleviate those risks.

Employers may find it helpful to have a robust and comprehensive policy which outlines the responses that the organization will take in response to a pandemic.

Refusal to Work

Workers in Saskatchewan have the right to refuse to perform unsafe work if the employee has reasonable grounds to believe that the work is unusually dangerous to their health or safety (or the health or safety of any other person at the place of employment).

Any claim by an employee that it is unsafe to work is a serious matter which must be investigated by the employer. As indicated above, the employer must take all reasonable measures to protect the health and safety of its employees. It is not yet clear whether employees in Saskatchewan may be justified in refusing work because of potential for exposure to COVID-19. In the meantime, employers are encouraged to work with their employees to find solutions which address the employees’ concerns, while allowing the employer to continue to carry on business.

Absences from Work

Generally speaking, and as with any other illness, if an employee discloses that they are not feeling well or are showing symptoms which are consistent with COVID-19, it is reasonable for the employer to request that the employee refrain from reporting to work until they are well. In addition, the employer should have regard for the latest provincial and federal directions regarding the self-isolation of employees who have travelled or been in contact with others who may have been exposed. In some cases, it may be possible to allow the employee to work from home during a period of minor illness or self-isolation.

An absence due to COVID-19 should be handled the same as any other absence due to illness. Under The Saskatchewan Employment Act, an employee is generally not entitled to be paid while absent from work; however, some employees have entitlement to paid sick leave under a workplace policy, collective agreement or other employment contract.

The Saskatchewan Employment Act protects the jobs of employees who are absent from work due to illness or serious illness for up to 12 weeks. In addition, The Saskatchewan Human Rights Code, 2018 protects employees from discrimination on the basis of a prohibited ground, including disability. We strongly recommend that employers seek out legal advice specific to their situation before making any long term decisions with respect to their employees.

For further information, please contact:

Candice D. Grant

Direct: 306.933.1304

Email: [email protected]

Privacy of Intimate Images in a Digital Age

by | Jan 6, 2020 | Articles & Research, Media Law / Defamation, Sean M Sinclair

Privacy of Intimate Images and Videos in a Digital Age

By Sean Sinclair of Robertson Stromberg LLP

 

The online distribution of intimate images and videos (often referred to as “revenge porn”) is a growing problem in Canada.  According to the RCMP, as outlined in a story by CBC News[1], police forces are on track to handle more than 5,000 complaints of the unauthorized distribution intimate images or videos over a five-year period.  The problem is intensifying in recent years, with police handling more than 1,500 cases per year for each of the past three years.

There are both criminal and civil law issues that arise from these actions.  Some of these issues are addressed below.

Criminal Offence

Section 162.1 of the Criminal Code criminalizes the publication or distribution of intimate images (including videos) of an individual without consent.  A working group looking at whether to pass this law found that the existing offences of voyeurism, obscene publication, criminal harassment, extortion and defamatory libel did not adequately address the issue of non-consensual distribution of intimate images and that changes to the law were needed.[2]  Section 162.1 of the Criminal Code was introduced in 2014, motivated in part by the cases of Rehtaeh Parsons and Amanda Todd who had committed suicide after individuals had distributed intimate images of them online.

An individual in Saskatchewan has since been convicted under Section 162.1[3] and received an 18-month prison sentence.  There are other cases decided across Canada and several ongoing matters which deal with this same issue.

Civil Claims

In addition to criminal law prosecutions, there are a few cases where victims of this conduct have brought court actions against perpetrators.

The nature of the civil lawsuits varies, to some extent, province-to-province.

In Saskatchewan, the government passed amendments to The Privacy Act in 2018 to address the distribution of intimate images.  It is now a tort in Saskatchewan for a person to distribute an intimate image of another person without that person’s consent[4].  The Act presumes that consent was not given, and the poster of the material bears the onus to establish that he or she had reasonable grounds to believe that consent was given, to avoid liability.

There are no reported Saskatchewan decisions on these new sections of The Privacy Act.  Thus, it is difficult to know what monetary compensation might be given for this type of conduct.

In several other provinces, there are no statutes that create civil liability for the online distribution of intimate images.  However, courts have expanded tort law to allow for civil liability for this type of a claim.

The leading case is Jane Doe 464533 v N.D.[5] (an Ontario case where they do not have a statute that deals with this issue).  The basic facts are that the defendant had posted an intimate video of the plaintiff on a pornographic website without consent.  The defendant allegedly also showed the video to some of his friends or acquaintances.  The plaintiff’s friends became aware of the video as well.  It was removed by the defendant after approximately 3 weeks.  There is no way to know how many times it was viewed or downloaded.  The plaintiff was devastated.  She deferred examinations, skipped school and stayed in bed.  She had trouble sleeping and started seeing a counsellor to deal with the emotional fallout.  She experienced serious depression.

The defendant in Jane Doe did not initially file a statement of defence.  He was, therefore, deemed to have admitted to the acts in the claim, including the fact that he posted the video without consent.  The judge found that the acts of the defendant led to liability on three different bases: breach of privacy, intentional infliction of mental distress and breach of confidence.

On the breach of privacy claim, the judge adopted a new tort, which stems from American case law, of “public disclosure of private facts”.  In order to establish that there has been public disclosure of private facts, the judge in Jane Doe indicated that a plaintiff would need to show that there had been publication of a matter that is highly offensive to a reasonable person and is not of legitimate concern to the public.

The Court in Jane Doe awarded general damages of $50,000, aggravated damages of $25,000 and punitive damages of $25,000.

It should be noted that the defendant later successfully brought a motion to lift the default judgment to allow him to defend the claim.[6]

Conclusion

These issues of online dissemination and distribution of intimate images and videos without consent are increasing.  Hopefully though, the relatively new criminal sanctions and developing tort law will have some positive effect in deterring individuals from sharing such materials without consent.

 

[1] https://www.cbc.ca/news/canada/saskatchewan/revengeporn-and-sext-crimes-canada-sees-more-than-5-000-police-cases-as-law-marks-5-years-1.5405118

[2] https://www.justice.gc.ca/eng/rp-pr/other-autre/cndii-cdncii/p6.html

[3] https://www.cbc.ca/news/canada/saskatchewan/north-battleford-revenge-porn-1.5343285

[4] Section 7.3(1) of The Privacy Act

[5] 2016 ONSC 541

[6] 2016 ONSC 4920

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