By Terrance S. Carter, Adriel N. Clayton and Martin U. Wissmath

Federal Government Announces New Recovery Programs In Place of CEWS and CERS

Various federal relief measures in support of businesses and organizations, including charities and not-for-profits, have terminated and were not renewed as of October 23, 2021, including the Canada Emergency Wage Subsidy (“CEWS”) and Canada Emergency Rent Subsidy (“CERS”). The CEWS provided a wage subsidy to eligible employers expecting a drop in “qualifying revenues”, and the CERS provided a commercial rent subsidy with an additional lockdown support top-up for temporarily shut-down organizations; both had been extended until October 23, 2021, as reported in the August 2021 Charity & NFP Law Update.

According to a news release by the Department of Finance Canada on October 21, 2021, the federal government proposed new support measures in place of the CEWS and CERS, including the Hardest-Hit Business Recovery Program (the “Hardest-Hit Program”). The Hardest-Hit Program provides rent and wage support, and will be available to organizations that do not qualify for the government’s other proposed program – the Tourism and Hospitality Recovery Program. To be eligible, organizations must meet two requirements: (1) they must have had “an average monthly revenue reduction of at least 50 percent over the first 13 qualifying periods” for the CEWS; and (2) they must have a “current-month revenue loss of at least 50 percent.”

The maximum subsidy rate under the Hardest-Hit Program is set at 50% from October 24, 2021 to March 12, 2022 (i.e. claim periods 22 to 26), with subsidy rates based on current-month revenue losses. Subsidy rates begin at 10% for organizations experiencing a 50% current-month revenue decline, and will increase on a straight-line basis to a maximum 50% rate for organizations experiencing a revenue decline of 75% or higher. Subsidy rates will then be reduced by half from March 13 to May 7, 2022 (i.e. claim periods 27 and 28).

While CERS support itself has ended, the Lockdown Support that previously formed a part of CERS and provided additional rent support for organizations subject to a lockdown pursuant to a public health order, will continue to be made available under the Hardest-Hit Program at the same rate of 25%, and pro-rated to the number of days that a location is affected by lockdown measures. Beyond Lockdown Support, additional support will be available to organizations, regardless of sector, where one or more of their locations is subject to a public health restriction of at least seven days that requires them to cease activities that account for at least 25% of their total revenues during the prior reference period. Support is provided at the same subsidy rates as those under the Tourism and Hospitality Recovery Program.

Amendments and an extension have also been proposed to the Canada Recovery Hiring Program (“CRHP”), also initially discussed in the August 2021 Charity & NFP Law Update. The CRHP, which provides eligible employers who have experienced “qualifying revenue declines” with a subsidy based on eligible salary or wages to help hire new workers or increase their current workers’ hours or wages. According to the news release, the subsidy rate will be increased to 50% for the period from October 24 to November 20, 2021. Further, the federal government announced its intention to extend the CRHP beyond November 20, 2021 to May 7, 2022.

Ontario Relaxes Public Health Measures and Capacity Limits

Over the course of October 2021, the Government of Ontario has taken various steps to relax provincial public health measures as the province moves closer to reopening and returning to a semblance of “normality”. In separate announcements made on October 8, 2021 and October 22, 2021, the Government of Ontario indicated that it was lifting capacity limits for select indoor and outdoor settings where proof of vaccination is required, and set out its gradual approach to lifting public health restrictions across the province which, notably, relaxes restrictions for charities and not-for-profits operating facilities where a wedding, a funeral or a religious service, rite or ceremony take place, among others.

Two amending regulations were filed under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (the “Reopening Ontario Act”). Ontario Regulation 698/21 (“O Reg 698/21”), filed on October 8, 2021, amends Ontario Regulation 364/20, Rules for Areas at Step 3 and at the Roadmap Exit Step (the “Step 3 Regulations”). Ontario Regulation 727/21 (“O Reg 727/21”) was filed on October 22, 2021, and further amends the Step 3 Regulations.

• O Reg 698/21 amends the Step 3 Regulations to lift capacity limits and allow 100% capacity in certain indoor settings, such as: meeting and event spaces, including conference and convention centres; areas for spectators in sports and recreational fitness facilities (though this was further modified by O Reg 727/21, discussed below); and concert venues, theatres and cinemas; among other settings.
• Reg 727/21 amends the Step 3 Regulations to remove capacity restrictions for additional areas, including food and drink establishments, facilities used for sports and recreational fitness activities (rather than merely areas for spectators, as set out in O Reg 698/21), as well as casinos, bingo halls and other gaming establishments.

O Reg 727/21 also provides an opt-in mechanism for proof of vaccinations for certain places of business and facilities that are not otherwise subject to vaccine passport requirements, allowing operators to “opt in” and elect to require vaccine passports prior to entry. Those that opt in will not be subject to the generally-required two-metre physical distancing limitations at their facilities, but must post signs at all entrances to inform the public that proof of vaccination is required prior to entry. Of particular note to charities and not-for-profits, the list of businesses and facilities that may opt in includes:

• Facilities where a wedding, a funeral or a religious service, rite or ceremony takes place;
• Outdoor recreational amenities, in respect of indoor clubhouses;
• Museums, galleries, aquariums, zoos, science centres, landmarks, historic sites, botanical gardens and similar attractions, in respect of indoor areas;
• Fairs, rural exhibitions, festivals and similar events, in respect of indoor areas; and
• Marinas, boating clubs and other organizations that maintain docking facilities for members or patrons, in respect of indoor areas.

Enhanced Vaccine Certificates Launched in Ontario

The Government of Ontario’s vaccine passport QR code and verification app are now available for patrons and operators of venues subject to vaccine passport requirements. In a news release on October 15, 2021, the Government of Ontario announced that its enhanced vaccine certificate with official QR code and the free verification app, Verify Ontario, were available for download. As indicated in the September 2021 Charity & NFP Law Update, a vaccine passport system was commenced in Ontario on September 22, 2021, requiring individuals to provide proof of vaccination prior to entry into certain non-essential venues, some of which may be operated by charities and not-for-profits. These include “indoor areas of meeting and event spaces, including conference centres or convention centres” (although excluding areas rented out for children’s camps, childcare and social services), indoor areas of facilities used for sports and recreational fitness activities, and indoor areas of concert venues, theatres and cinemas. While a vaccine receipt and photo identification have been sufficient to permit entry, the newly launched and enhanced digital vaccine receipt, featuring a scannable QR code that can be scanned and verified through Verify Ontario, is now available for use as well.

Together with the launch of the enhanced digital vaccine receipt, Ontario Regulation 710/21 (“O Reg 710/21”), filed on October 15, 2021, amends the Step 3 Regulations to permit organizations to use certain specified electronic applications for the sole purpose of confirming that patrons are either fully vaccinated against COVID-19 or entitled to an exemption. Further, O Reg 710/21 adds an additional exemption for vaccination proof requirements to the Step 3 Regulations. The exemption applies to individuals that provide documentation confirming their participation in a COVID-19 vaccine clinical trial authorized by Health Canada and which is specified in the “Proof of Vaccination Guidance for Businesses and Organizations under the Reopening Ontario Act”. Those individuals are now exempt from providing proof of vaccination prior to entry into certain settings.

COVID-19 Vaccines Mandatory for Ontario Long-Term Care Home Caregivers

As of November 15, 2021, all in-home staff, support workers, student placements, and volunteers (“Individuals”) at long-term care homes in Ontario will be required to be fully vaccinated against COVID-19, unless a valid exemption applies. Minister’s Directive: Long-term care home COVID-19 immunization policy, released by the Minister of Long-Term Care on October 1, 2021, mandates that as of that date, licensees of long-term care homes, as defined under the Long-Term Care Homes Act, 2007 (“Licensees”), must ensure that all Individuals provide proof of having received:

1. the full series of a COVID-19 vaccine authorized by Health Canada, or any combination of such vaccines;
2. one or two doses of a COVID-19 vaccine not authorized by Health Canada, followed by one dose of a COVID-19 mRNA vaccine authorized by Health Canada; or
3. three doses of a COVID-19 vaccine not authorized by Health Canada

in order to attend the long-term care home for any period for work, a placement, or to volunteer. Proof must be provided by November 15, 2021, or as of the first day the Individual begins attending the home if they begin attending the home for work, a placement or to volunteer after October 1, 2021.

Proof of vaccination will not be required from individuals who have a written note from a physician or registered nurse in the extended class setting out a valid medical reason that the individual cannot be vaccinated, and the effective time period for the medical exemption. Proof of vaccination must then be provided within thirty days of the expiry of the exemption, as set out in the letter, although a seven-day extension may be granted where unforeseen or extenuating circumstances outside of the control of the Individual have prevented the Individual from receiving their full vaccination in time. Subject to additional restrictions, proof of vaccination will also not be required for support workers attending the home “for emergency or palliative situations, to provide timely medical care, or for the sole purposes of making a delivery.”

Licensees must clearly set out the consequences for those who do not provide proof of vaccination or of a medical exemption, including that they cannot attend the home for their work, placement, or to volunteer. Any additional consequences must be in accordance with the Licensee’s human resources policies, collective agreements, and any applicable legislation, directives, and policies. Licensees will also be required to make an educational session available to all Individuals with certain information on COVID-19 vaccines, their benefits and possible side effects, and the risks of being unvaccinated.

Read the October 2021 Charity & NFP Law Update