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A trucking legal review and outlook

On New Year's Eve 2020, one might have expected to see developments in any one of several "hot" areas of law relating to truck transportation -- such as electronic logging devices (ELDs), mandatory entry-level training (MELT) for new drivers, or the "Driver Inc." misclassification of drivers as independent contractors. ELDs remain scheduled to become mandatory in 2021, but no there were no significant developments. MELT rules remain provincial, and relatively minimal. "Driver Inc." remains an issue, but there were no significant new legal cases, and no significant moves to make changes.

All of these topics were eclipsed by the Covid-19 emergency.  Of course, transportation, warehousing, and logistics serves were all deemed "essential" and they carried on, despite regional "lockdowns".  Some operators experienced booms, other busts. However, new laws and regulations were few and far between.

(Illustration: istock)

Perhaps the two most significant issue for truck drivers were the lack of rest stops and strong community support, and the question of out-of-country medical coverage available while working in the United States. Sadly, little was done with respect to rest stop services.

However, the insurance coverage question was resolved in a positive way by the Canadian Life and Health Insurance Association by late March 2020.  Most benefits were promised to continue, so long as drivers were working and not traveling for pleasure or other reasons outside of employment. Through it all, the following issues arose as matters to monitor in 2021:

  1. Access to vaccines. Unfortunately, it remains entirely unclear when and how transportation professionals will be prioritized in the vaccine roll-out.
  1. General employment issues, including recall. At the start of the Covid-19 crisis, people were asking questions about whether they had to take U.S. assignments if they were uncomfortable with the work.  In more difficult cases, they were asking about pay reductions, layoffs, and whether or not their contracts were affected by "force majeure" provisions. Now that there is a light at the end of the tunnel, one might expect there to be uncertainty regarding employees being recalled to work.

    This includes whether or not employees will see fit, in the context of their own circumstances, to sue their employers for "constructive dismissal" or to wait and see if their employers will make good on promises to recall them.

  1. Waksdale. In a case called Waksdale v. Swegon North America Inc., the Ontario Court of Appeal threw a curveball that nobody was expecting. In that case, an employment agreement contained provisions about what would happen if the employee was terminated "for cause" or "without cause".  The employee was then terminated "without cause" (conceded by the employer) and given the minimum required notice under the contract and the Employment Standards Act (ESA).

    The court found that the entire contract between the parties was unenforceable because the "with cause" provision (the one not at issue) was inconsistent with the ESA, and it awarded "common law" notice in excess of the ESA minimum. The effect of this could increase the risk for many employers during termination scenarios. The employer is looking to have the matter heard by the Supreme Court of Canada, and the decision whether to hear the case will likely be made sometime in early 2021.

  1. Limitation periods and court procedures. When the Covid-19 crisis emerged, new rules were put in place to address many types of limitation periods.

    However, this was done in a piecemeal and haphazard way. In some cases it was done retroactively. In one controversial decision, the chief justice of the Federal Court determined that federal legislation to retroactively suspend all federal time periods did not apply to Federal Courts Rules under the Federal Courts Act.  Instead, he found that litigants in his court ought to follow prior practice directions that had been issued by his office.

    The result is that there will likely be more work for lawyers and -- unfortunately for some people caught between the cracks -- some "interesting cases". The courts, more generally, are also operating on a haphazard re-opening schedule. Many matters are now being heard by Zoom or Microsoft Teams, depending on the court, but the rollout is nothing short of a confused mess.

    Some services, including accessing sheriff's services to enforce court awards, have been difficult to obtain.

  1. Speedy Trials for Regulatory Offences. In 2016, in a case called v. Jordan, the Supreme Court of Canada laid down the law regarding constitutional entitlement to a speedy trial. The upper ceiling in provincial courts is 18 months, subject to delays attributed to the defendant and subject to "exceptional circumstances".

    The provincial courts - which hear the vast majority of regulatory matters concerning the trucking industry, such as highway traffic laws and laws concerning the transportation of dangerous goods - will not be able to say that there were exceptional circumstances every time the Crown excuses its delay on Covid-19.  The courts will have to weigh the specific steps taken by counsel in a particular case , weigh whether or not the delay was reasonable.

  1. The (Ontario) towing industry. There have been concerns from many quarters about Ontario's towing industry, including with respect to consumer protection issues, the lack of driver licencing, safety issues, and - especially in the Greater Toronto Area - turf wars among certain operators.  In response, the Ontario government has stuck a task force to consider future regulation and it has solicited public input for a sector-wide study. It remains unclear what will come next, or to what extent any changes might influence other jurisdictions.
  1. Covid relief measures. The federal and provincial Covid-19 relief measures have been many, with some more successful than others. A few of the more significant federal benefits to monitor into 2021 include Employment Insurance and the Canada Recovery Benefit (which replaced the "Canada Emergency Response Benefit", money paid directly to unemployed workers), the Canada Recovery Sickness Benefit (for people missing work due to quarantine or isolation obligations), the Canada Emergency Wage Subsidy (to help retain and rehire employees), and the Canada Emergency Rent Subsidy (now supporting qualifying organizations that have been significantly impacted by lockdown orders).

-- Alan S.

Cofman is a partner with Fernandes Hearn LLP in Toronto, and can be reached at 416-203-9500.

This article is intended for information purposes only and does not constitute legal advice.

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