On March 13, 2020, the Quebec government declared a state of health emergency and took several measures to ensure the health and safety of its citizens. These measures have and will have a significant impact on the economy. Despite the financial assistance provided by the governments, many people will not be able to meet their legal commitments.
We offer you an overview of the impacts of this pandemic on your rights and obligations in different areas.
Contracts: Does the COVID-19 pandemic constitute a superior force justifying the non-respect of your contractual obligations?
An event qualified as superior force (or Act of God) by the Quebec courts may have the effect of suspending or releasing the execution of certain contractual obligations or even result in the termination of a contract in the event of significant non-fulfillment.
What is a superior force? It is an unforeseeable, irresistible event that is not attributable to the person invoking it. When such an event occurs, the commitment made becomes impossible to fulfill.
(1) Unforeseeable: The event could not be foreseen at the time of the conclusion of the contract. However, an exceptional situation is not necessarily unforeseeable.
(2) Irresistible: The event leads to an absolute impossibility to respect the obligation or to prevent the occurrence of the event. If the performance of the obligation is still possible, but more difficult or more expensive, we cannot speak of irresistibility.
(3) External cause (non-accountability): The occurrence of the event is independent of the debtor’s will; it is beyond his control.
The determination of superior force is a case-by-case matter and will have to be the subject to a rigorous analysis. The COVID-19 pandemic does not cancel out all your obligations.
This analysis must, among other things:
- verify whether the contract itself provides for a clause applicable in cases of superior force;
- consider the intensity of the obligation (means, result or warranty), since in the case of a warranty obligation, superior force cannot be invoked;
- consider the factual situation surrounding the contract;
- and remember that the burden of proving superior force lies with the person who invokes it.
It is also important to check whether an insurance policy covers losses in the event of failure to perform its obligations. If so, make sure that you follow the terms and conditions of the insurance policy.
In addition, you should be aware that if you are unable to substantially perform your obligations, your contractual partner is entitled to refuse to perform its correlative obligations to a corresponding extent.
It is likely that the Quebec courts may determine, in certain cases, that this pandemic constitutes a superior force. History and law cases give us some examples where superior force has been recognized in the context of certain contracts: the Oka crisis of 1990, the ice crisis of 1998, the attacks of September 11, 2001, the spread of the H1N1 virus in 2009.
However, you cannot assume that you will be automatically released from your contractual obligations as a result of the pandemic. If you are unable to perform your obligations because of the pandemic or if your counterpart is unable to perform its obligations because of the pandemic, we suggest that you seek legal advice as soon as possible to determine your rights and obligations.
Residential lease: Are you justified in not paying your rent because of the pandemic?
The Régie du logement has suspended its hearings as long as the state of health emergency is declared. It has also suspended the execution of decisions regarding repossession, eviction or expulsion.
Although landlords are asked to show understanding for tenants who may, as a result of COVID-19, have difficulty paying their rent as agreed, tenants are still required to pay their rent. The pandemic is not a reason to evade these obligations. It is the responsibility of tenants to contact their landlord to make a temporary arrangement for rent payment.
Family law: The status quo despite the pandemic.
A decision was rendered on March 27, 2020, regarding custody and access in the context of the COVID-19 pandemic in which the court stated that
“[a]lthough this may seem paradoxical, the presence of COVID-19 as a health emergency is not in itself, in the absence of symptoms for the individuals concerned, sufficient grounds for a change in the status quo, custody and access for children.” (our translation)
Droit de la famille – 20474, 2020 QCCS 1051 (CanLII)
Therefore, despite the pandemic, prior agreements (a ruling or agreement between parents) must be respected as much as possible, while respecting the directives issued by public health.
If compliance with an agreement or ruling is not possible, the parents can reach an agreement together, or through their respective lawyers, on the reinstatement of the time cut due to the crisis.
As far as alimony is concerned, it must be paid as planned, but it is possible that an adjustment may be necessary at the end of the crisis if the parents’ situation has changed. Contact us if this is the case.
Labour law: Significant and long-term impacts.
First, the employer must protect the health, safety and physical integrity of its workers. Thus, the employer must reduce the risk of virus infection for its employees by all reasonable means, whether by promoting telework and social distancing, by prohibiting the presence at work of people showing symptoms of infection, by encouraging hand-washing, and so on. These measures must be taken during the pandemic but also when returning to work. Employers will have to follow the guidelines issued by public health.
Workers may file a complaint with the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST) if they believe that reasonable precautions are not being taken by their employer. In extreme cases, they may even refuse to perform their work. However, it is important to be well informed before making such a decision, since a refusal to return to work could be considered as the end of the employment relationship, with all the consequences that this entails.
Second, the current crisis is affecting the economy to the extent that employers may be forced to lay off one or more of their employees due to lack of work. Subject to the employment contract, which may contain specific clauses, lack of work is a serious reason for terminating an employment contract immediately without notice. It goes without saying that this cannot be a pretext to get rid of an employee who has become undesirable. Otherwise, it could be considered as wrongful termination.
For employees who are not managers and who therefore benefit from the protection of the Labour Standards Act, the situation is not so different: you can be laid off on simple verbal notice, as long as it is for an indeterminate period, which is generally the case at present. If the lack of work continues beyond six months, employees may be entitled to an indemnity that varies according to their seniority.
Fortunately, many employees and employers will be able to benefit from various government aid programs to get through the crisis but certain situations can or may raise questions. Do not hesitate to contact us if in doubt.
Procedural time limits: Suspension of deadlines vs. their calculations
Terms of prescription and limitation periods in civil matters, as well as the civil deadlines, shall be suspended until the expiry of the declaration of a state of public health emergency. This has been the case as of March 13, 2020. We are talking about suspension, so these time limits will start running again upon the expiry of the declaration of a state of public health emergency.
A break for some, but an extra wait for others. In both cases, it will be necessary to make an appropriate follow-up of the calculation of the deadlines following the end of this suspension in order not to lose rights. We advise you to contact us as soon as possible.