COVID-19: Is Your Workplace Ready to Return to Work?

The province has recently changed the workplace safety guidelines to ensure that workers and the public are protected amongst the COVID-19 pandemic. These guidelines are to ensure that everyone is equipped for when the province decides to slowly re-open. The guidelines that were released provides direction to those working in specific industries such as manufacturing, food manufacturing and processing, restaurant and food service, and the agricultural sector.  Particularly those that are essential workers.

The new guidelines for these sectors include instructions on:

  • Physical distancing: eliminating pay at door option, team meeting outdoors, staggering shift times, using ground markings and barriers to manage traffic flow
  • Changes to the work place: installing plexi glass barriers, proper ventilation and air condition to increase air flow and using boot sanitizing trays
  • Promoting cleanliness: providing proper sanitization, personal protective equipment and enforcing hand washing before and after breaks

Further to this, the province indicated that there will be 58 new inspectors. These new inspectors will join the hundreds that already exist that are providing essential workplaces with COVID safety guidelines to ensure a safe workplace. These inspectors will be able to make sure that workplaces are following the mandated safety protocol.

This workplace safety north link is a useful resource which consolidates guidelines from various health and safety associations for workplaces during the COVID-19 pandemic.

Covid-19: Ontario State of Emergency and the Impact on your Business

As the Covid-19 pandemic drags on many business owners are doing their best to work through the provincial state of emergency but fear they could face severe penalties from the government or be liable to employees who feel they are put at risk.  To help your business navigate through these uncertain times, this article will provide a brief overview of what “essential” and “non-essential” businesses are, review a non-exhaustive list of liability concerns, and provide a checklist of best practices and recommendations. 


On April 3, 2020, the Ontario government issued an order reducing the list of businesses classified as “essential” down to 44 categories. The province requires non-essential “workplaces” to close meaning only physical premises must close and not actual “businesses”. The most recent list of essential workplaces is available at

The Ontario government has been clear that non-essential businesses may continue to operate and online commerce and work-from-home arrangements are permitted and in fact encouraged. Further, non-essential businesses are allowed to temporarily access their premises for specific purposes such as: performing work at the place of business in order to comply with any applicable law; allowing for inspections, maintenance, and repairs to be carried out at the place of business; allowing for security services to be provided at the place of business; attending at the place of business temporarily to deal with other critical matters related to the closure of the place of business if the critical matter cannot be attended to remotely or to access materials, goods, or supplies that may be necessary for the business to be operated remotely.

Conversely, just because a business is deemed “essential” does not mean it is free and clear from legal obligations to provide a safe workplace under Occupational Health & Safety legislation. As expanded on below, employers must generally identify the risk of exposure, assess the risk of exposure, and take every precaution reasonable in the circumstances to protect all stakeholders of the business.


In the event your business is deemed an essential service you likely still have many concerns. What if it is impossible for your workers to socially distance on a jobsite? What if one of your workers contracts the coronavirus even though you abided by all safety precautions?  What if your workers do not feel comfortable returning to work but you are contractually obligated to complete a project?  Can your workers successfully file a WSIB claim if they contract the coronavirus?

These questions are just a few of the many we are seeing on a daily basis from employers.  Every situation is going to be fact based and needs to be analyzed on a case by case basis, but here are some key items all employers should keep in mind:


Ontario has the stiffest penalties for organizations who fail to comply with emergency orders. For corporations, non-compliance carries a maximum fine of $10 million. In the case of a director or officer of a corporation, non-compliance carries a maximum fine of $500,000.00 and a term of imprisonment of not more than 1 year.  The intention of these severe fines was presumably to deter price gougers, but the possibility exists for the government to fine or charge small business owners who are simply trying to keep their company from going under.  As a result, it is imperative that you ensure your business is deemed essential if your place of business is open or your workers are attending job sites. 


Businesses always have a statutory duty to take reasonable steps to protect their workers. COVID-19 risks may lead to employee claims if employees who are continuing to work do not consider their workplace safe. Social distancing and sterilization measures and practices recommended by public health officials should be rigidly maintained. Businesses should have a written COVID-19 policy regarding the measures that the business has adopted to prevent the spread of COVID-19 and directives regarding employees who are symptomatic or quarantined. This policy should be readily visible to all employees and even customers.


Workers are entitled to benefits for COVID-19 arising in the course of the worker’s employment. Claims will be adjudicated on a case-by-case basis; however, symptom-free workers are not provided with coverage even if the worker is quarantined or sent home for precautionary reasons.

The key factor in determining whether a worker is entitled to benefits is whether the worker’s employment duties were a significant contributing factor in the worker contracting COVID-19. Information about the work environment, work processes, job tasks, use or non-use of personal prospective equipment are all significant considerations.


Businesses who are deemed essential and continuing to operate physically should implement the following measures:

  • Travel Restrictions: employers are entitled to implement travel restrictions particularly when such travel is deemed as non-essential. While employers cannot ban personal travel, they can require employees to disclose personal travel information
  •  Self-Reporting Policies: businesses should create a system for employees to report their COVID-19 status aligned with public health recommendations
  • Social Distancing Practices: businesses should consider reconfiguring the workplace to ensure an increased physical distance aligned with public health official recommendations
  • Workplace Sanitization: businesses should be rigidly applying its cleaning procedures to ensure regular disinfection of the workplace generally
  • Personal Protective Equipment: some essential businesses are unable to restrict close contact with other stakeholders of the business and should make mandatory the use of certain personal protective equipment

This article is only a brief overview of the most recent emergency provincial government order and it is imperative for businesses to continuously monitor updates from the provincial and federal government and seek legal counsel where appropriate during this pandemic.  For assistance in preparing a Covid-19 workplace policy, determining what your business can and cannot do during the emergency order, or for any other information please contact Ken Ritson or Nathan Wainwright, or for other legal questions visit

Trademark Registration Changes

Trademark Act changes: Hurry up or wait?

Significant changes are coming to the Trademark Act (Canada) as of June 17th, 2019. The question of whether to apply for a registration before then or not is for you to decide but first consider the following.

An application for registration of a trademark before June 17th could save you money. Currently, the fee for an application is $450. After June 17th, the online application fee will be $330 for the initial trademark class plus $100 for each additional class. If you plan on applying for multiple trademark classes prepare to pay more.

Another significant change is the elimination of the “declaration of use” requirement in the trademark registration application. Before June 17th, you can apply for a trademark without it currently being in use. This could provide an advantage over current or potential competition if your trademark concept has yet to be developed.

Also, a registration or renewal before June 17th will be grandfathered to a 15-year term instead of the newly reduced 10-year term. Also, registrations renewed after that date will need to be amended and reclassified under the Nice Classification system, the international classification system for goods and services.

However, it may be advantageous to wait until after June 17th to register your trademark. One advantage is that the application process has been streamlined. A single application now enables trademarks to be registered in more than 100 countries under the Madrid Protocol. The application is now quick and simple. Translations are not required and neither are powers of attorney. Also, since the application is now filed under the World Intellectual Property Organization, it is done in one language and there is only one fee to be paid. This can be a significant administrative advantage to those wishing to pursue global markets.

Another advantage is the broadening of the trademark definition to include “non-traditional” trademarks such as sounds, colour, scent, taste and texture; modes of packaging; and holograms, moving images and three-dimensional shapes. A brand can now be distinguished by such things that serves indicate its source.  The inclusion of such “non-traditional” trademarks, coupled with the pursuit of global markets, can create new opportunities to develop and distinguish your particular brand.

Additionally, the application process has become more flexible. Issues can be corrected after the application is submitted without delaying the process. The application can be split to resolve or clarify submissions while allowing permitted applications to proceed. Once the split applications have been registered they can be combined into a single trademark registration.

Overall, the changes to the Trademark Act (Canada) are designed to benefit applicants in the long run. Distinguishing your brand on the global market is now easier and permitted portions of an application can proceed despite submission issues. Otherwise, the changes could create the necessary impetus to submit your application sooner rather than later while saving a few hundred dollars in the process.

This publication is meant to be a general overview of a few changes to the Trademark Act (Canada). Other changes that will come into force on June 17th may affect your particular circumstances.   Please contact Cheadles Lawyers LLP if you require further legal advice.

Power of Attorney

No one wants to think about a time when you can no longer make decisions for yourself. The thought is a difficult one; but a worse thought is when you are in that situation and you have no one you trust to make those decisions for you. It is for this reason that a set of Continuing Power of Attorney documents should be drafted when you still have the capability of choosing someone you trust to handle your affairs.

In simple terms, a Power of Attorney is a legal document that gives someone else the right and authority to act on your behalf. The validity, requirements, and use of power of attorney documents in Ontario is governed by the Substitute Decisions Act, S.O. 1992, CHAPTER 30., the Powers of Attorney Act, R.S.O. 1990, CHAPTER P.20, and related common law decisions.

In Ontario, there are three types of Power of Attorney documents:

1) Continuing Power of Attorney for Property –appoints someone to make decisions with regard to your financial affairs and continues to be in effect even if you become mentally incapable.

2) Power of Attorney for Personal Care- appoints someone to make decisions with regard to your personal decisions including health care and continues to be in effect even if you become mentally incapable.

3) Non-Continuing Power of Attorney for Property – limited use document that appoints someone to make financial decisions during a specified period of time and cannot be used if you become mentally incapable. For example, these are often used for individuals who are out of the country for long periods and need someone to handle their affairs while they are gone.

This article will focus primarily on the first two Power of Attorney documents. Unlike a Will, a Power of Attorney comes into effect during your lifetime and is only valid until death. After death, your Power of Attorney no longer has power. It is intended to be used during periods of incapacity- meaning times when you are unable to make decisions on your own behalf. Some common examples include: individuals suffering from dementia or Alzheimer’s disease or those who are in a coma or under long-term sedation, among others.  However, you should always choose someone you trust because, for example, your Power of Attorney for Property comes into effect as soon as you sign it- meaning that individual can access your bank accounts or sell your property without your knowledge, even if you are still mentally capable.   It is for this reason that it is crucial that you trust the person who you have appointed because the position holds a lot of power.

A Power of Attorney is not a mandatory document, but instead one that you give voluntarily to protect you and your assets. You should never force someone, or be forced, to give a Power of Attorney.  Furthermore, you cannot give a Power of Attorney if you are “mentally incapable”. In other words, if you are unable to recognize the gravity of signing the document at the time of signing, it cannot be completed (mental incapacity is much more complicated that this, but for ease of reference we will stick with this). Lawyers are not permitted to witness a Power of Attorney document if they have reason to believe that the individual does not have capacity. It is for this reason that it is important to ensure that these documents are finalized while you are still capable. Many adults with aging parents or spouses face this issue because if they have waited too long, the documents can no longer be validly signed. Many people get to the point when they need a Power of Attorney, but are no longer capable of giving one.

What happens if I don’t have a Power of Attorney?

In the situation where you become incapable of making your own decisions, and you do not have a Power of Attorney for Personal Care, many decisions related to personal care would be made by a family member, if any, who would automatically receive the authority to make these decisions for you. This individual would not receive the same amount of authority they would have received as your Power of Attorney. Some situations require the appointment of an individual by the Consent and Capacity Board. If there is no family member who is willing and able to act on your behalf, the Ontario Public Guardian and Trustee would have to be appointed.

In the situation where you become incapable of making your own decisions and you do not have a Power of Attorney for Property, a friend or family member can apply to the Superior Court of Justice to be appointed as your “Guardian of Property”. This process is detailed and can be quite expensive as it requires payment of court fees, capacity assessments, and legal fees. Alternatively, if the Public Guardian and Trustee of Ontario have been named as the statutory guardian, the Public Guardian and Trustee of Ontario can also name an individual to be the Guardian of Property.

The issue with these two options is that you do not have control over who is managing your decisions. Your decisions could be left in the hands of someone you do not trust or one that does not necessarily have your best interests at heart. There are requirements for these individuals to act reasonably, but if you are incapable, you are not able to request an accounting or make a complaint. Someone else would have to be the individual who questions the decisions of your guardian.

Often people say “it’s too early” or “I’ll get to that eventually”. Life tends to get in the way. Some people may find themselves mentally incapable and facing a lawyer who, by law, cannot witness a Power of Attorney document.  When it comes to these life decisions, it is best to discuss your options with your lawyer sooner than later to ensure that the decisions regarding your health and your finances are in the hands of someone you trust.

Common Law Spouses Intestate

My common law spouse doesn’t have a Will, what am I entitled to?

In many ways, being common law spouses is very similar to being legally married spouses. However, one of the significant differences between the two surfaces when a spouse dies without a valid will.

In Ontario, a person who dies without a Will is referred to as “intestate” and the distribution of their estate falls under the intestate rules under Part II of the Succession Law Reform Act, 1990. As detailed in my previous post regarding intestate succession, under this Part, a surviving spouse is the first in line when it comes to the distribution of the estate of their deceased spouse. However, the definition of a “spouse” under Part II of the Succession Law Reform Act specifically refers to legally married spouses. As such, a common law spouse is not entitled to the relief granted under this Part of the legislation.

Additionally, a legally married spouse is entitled, under the Family Law Act, to elect to receive an equalization of the net family property (this is the value of all the property that a spouse owns at the time of death, after deducting any debts and liabilities). Again, this election is only available to legally married spouses.

So, where does this leave a common law spouse when his or her spouse has died intestate?

A common law spouse has the right, under Part V of the Succession Law Reform Act, to bring a claim for dependant support. This Part of the legislation specifically includes common law spouses since it defines a spouse as: two persons who are not married to each other and have cohabited either continuously for a period of not less than three years, or have been in a relationship of some permanence, if they are the natural or adoptive parents of a child. (Please note- this claim is also available for spouses whose spouse died with a will but did not leave adequate support for the surviving spouse)

Although this relief is available, bringing a claim for dependant support can be an expensive and arduous process- given that it will require an application to the Superior Court of Justice.  In the application, the spouse will have to provide evidence to prove that he or she fits into the definition of a spouse under Part V of the legislation. If he or she does fit within this definition, the amount of support is also at issue. When determining a dependant’s required amount of support, the court reviews many factors including, but not limited to, the dependant’s current assets, the dependant’s ability to support his or herself, the dependant’s age and physical and mental health, among others. Additionally, an application by a spouse also allows the court to review the relationship between the dependant and his or her deceased spouse to determine whether or not support should be provided.

This process can be made more complex if there are other beneficiaries who feel that they have a better claim to the estate, or that the common law spouse’s claim is invalid or exaggerated.

Generally, this remedy is only available up to 6 months after date of the grant of letters probate of the will or of letters of administration. If this is the common law spouse’s only alternative, it is recommended that he or she contact a lawyer well before this time limit is up.

The best method to ensure that your spouse is properly supported for upon your death is to have a will drafted. This is especially important for common law spouses as they are not entitled to the same rights and privileges as a legally married spouse. To obtain more information on this topic or to discuss your current situation, please feel free to contact one of our experienced wills and estate lawyers.

If I don’t have a Will?

What happens if I don’t have a Will? – A review of intestate succession in Ontario

In Ontario, a person who dies without a Will is referred to as “intestate” and the distribution of their estate falls under the intestate rules under the Succession Law Reform Act, 1990. Factors that impact the distribution of the estate include: potential beneficiaries living at the date of death of the deceased, the net value of the estate (the amount after all debts and funeral expenses are paid out), the preferential share (an amount a spouse is entitled to, which is currently set $200,000 in Ontario), and the relationships that the individual has – either legally or through blood relations.

Please note- A “spouse” in the following distribution rules refers to an individual who is legally married. A common law spouse does not have the same legal rights as a legally married spouse under the Succession Law Reform Act. (If you are not legally married but you would like to leave your estate to your common law spouse, the best method in doing so is to ensure you have a Will. For more information, please also see my article regarding the rights a common law partner may have upon the death of their intestate spouse.

If an individual dies intestate, and that individual is married without children, the spouse of the intestate receives the deceased entire estate, absolutely.  An intestate’s spouse also has rights under the Family Law Act, 1990. However, the spouse would have to choose whether to receive under the Succession Law Reform Act or under the Family Law Act, as you cannot receive under both acts – a lawyer should be consulted to assist in making this decision.

If an intestate had a spouse and did have a child, but that child predeceased the intestate, the intestate’s child’s children (the grandchildren) would receive the amount the child would have had he or she been living at the time of the intestate’s death. If there are no grandchildren, it would be treated as if there was no child.

If the intestate has a spouse and children, the distribution is determined based on the net value of the property. If the net value of the property is higher than the preferential share, the spouse receives the $200,000 preferential share outright, and splits any amount over the $200,000 equally with any children of the deceased alive at the time of the death (or any children of predeceased children of the intestate).  If the net value of the estate is under the preferential share ($200,000), the spouse receives the proceeds of the estate absolutely.

If the intestate has no spouse, but has children, the proceeds of the estate are distributed equally between all living children at the time of death of the intestate. Again, if a child predeceased the intestate but has living children (the intestate’s grandchildren), those children would receive the amount that their parent would have had they not died before the intestate.

If the intestate has no spouse, no children, and no living grandchildren, the proceeds of the estate is distributed equally between the parents of the deceased living at the time of death.

If the intestate has no spouse, no children, no grandchildren, and no living parents the proceeds of the estate is distributed equally between the siblings of the intestate living at the time of death. If a sibling predeceased the intestate and has living children, those children would receive the amount that their parent would have had they not died before the intestate.

If the intestate has no spouse, no children, no grandchildren, no parents, and no living siblings, the proceeds of the estate is distributed equally between the nephews and nieces of the intestate living at the time of death. If one of the nephews and nieces predeceased the intestate, their share is split equally between the surviving nephews and nieces equally.

If the intestate has no spouse, no children, no grandchildren, no parents, and no siblings, no living nephews or nieces, the proceeds of the estate is distributed equally between the individuals fitting into the next degree of blood relative living at the time of death, absolutely.

If there are no blood relatives of the intestate, the estate escheats to the Crown- meaning the proceeds of the estate are given to the Crown, Her Majesty the Queen.

It is clear that the distribution of an intestate’s estate can be complicated and convoluted. Not only is the determination of who receives under the estate complex, but the process of properly distributing the estate can also prove to be challenging.

In order to legally act on behalf of an estate, an individual must apply to the Superior Court of Justice for a Certificate of Appointment of Estate Trustee. This application requires, among other things, a renunciation from other potential estate trustees who are entitled in priority to be named as estate trustee, consents from all potential beneficiaries of that individual’s appointment, a valuation of the estate, and an affidavit by the individual applying to become estate trustee swearing their intention to act faithfully when distributing the estate. In addition, a monetary bond filed with the Court could also be required, depending on the situation. These applications generally require the assistance of a lawyer, so if you find yourself in this situation, please contact a lawyer to discuss the option available to you.

This article is a brief overview and generalization of the rules of intestate succession. There are many specific rules and laws that govern this area of law and as such, certain facts and realities impact your situation. If you do not have a Will and would like more information about it before contacting a lawyer, please review my article regarding the basics of why a Will is important.  Please also contact our office and one of our wills and estates lawyers will be happy to answer any questions you may have.