In May and again in August, the UCDA, working with DesRosiers Automotive Consultants, surveyed Members about the effects of COVID-19 on their businesses. The earlier survey found that business had all but dried up for most Members during the April shutdown.

The most recent survey, conducted from August 4-11 and covering the months of May, June and July, received responses from close to 600 Members. It showed a much improved situation compared with the state of the industry in April.

While only 13.9% of responding Members were open for their regular hours in April, by July 48.3% were open regular hours. While this still left more than half the stores at less than regular hours, it was a huge step forward from the Spring. Complete closures of Member stores fell from 42.1% in April to just 5.0% in July.

Many Members have seen steadily improving sales in recent months. In July, as consumers released pent-up demand, nearly 40% of surveyed Members indicated sales volume growth compared to the previous year. However, 21.1% indicated a sales decrease of 1-25%, 23.4% indicated a decrease of 26-50%, and 15.9% indicated a decrease of 51-100%.

Comparatively in April, 99.1% of Members indicated that their sales volumes had dropped with the majority (54.8%) indicating a decrease of 76-100%.

For the year overall, close to 80% of responding Members expect the market to be down from 2019, with the largest segment, 32.4%, expecting total sales to decrease between 1% and 25% in 2020.

With regard to used vehicle prices, the majority of respondents (68.6%) saw price increases of varying degrees in July. A shortage of vehicles traded in during the Spring months has led to supply – demand mismatches in the market pushing prices higher.

This is also reflected in vehicle sourcing patterns for Members in July, with the great majority of respondents indicating challenges in sourcing some or all vehicles. Indeed, just 9.5% of respondents noted no difficulty whatsoever in sourcing vehicles.

From information received from Members since the survey was completed, August continued the trend from July. Sourcing inventory has continued to be a concern for most Members, despite a steadily increasing volume of vehicles going through the auctions.

Demand has remained steady, so prices have stayed high or have risen further on popular models. This has been exacerbated by the continued high demand at auctions from U.S. dealers, who are prepared to pay well over typical Canadian retail prices for used pick-ups and some SUVs.

OMVIC Renewal Form – Export Question

Not that long ago, OMVIC forms … applications, renewals, transfers … were all on paper. OMVIC has moved much of this online, as many dealers have with their own forms and contracts.

Generally, this makes life easier. However, it also creates its own unique challenges. For example, we rely, more than ever, on Members to tell us what they find confusing or difficult about some of the online forms they encounter from OMVIC. In many cases, we have not seen the form, because we do not have account access like dealers do.

One form that dealers will encounter regularly is the “dealership renewal request” form. This is how dealers renew their dealer registration with OMVIC annually online. We recently learned that a new category had been added to the form for the transaction fee which asked about vehicles sold for “export”.

Many dealers export vehicles out of Canada, and in particular to the U.S., so this number, for some dealers, can be large. If the $10 fee applied to every such sale that number would be large too! What is important, and what the form may not have made as clear as it could have, is that the number you report for this purpose should not include sales to “dealers”.

This is how the form was worded:

We asked OMVIC to clarify that the form only expected numbers to be reported on sales to non-dealers, not the actual total number of sales to all buyers.

The other concern, in light of this possible confusion, is how dealers who may have “over-reported” could ask OMVIC to reassess the transaction fees they may have been charged in error.

On the first issue, OMVIC has responded to the concern by amending the form to ask the question in a way that should cause less confusion. The new question emphasizes that the number of sales being asked for are sales to nondealers.

They have also updated their FAQ’s on the subject https://tinyurl.com/y6k6zytw

This is how the form is now worded:

As to the second issue, how do you correct reporting errors or seek adjustments to transaction fees charged in error? OMVIC advises dealers to contact OMVIC’s registration department, so OMVIC can get more information and check details. Your can reach OMVIC at:

[email protected] or call 1-800-943-6002 x3941.

Person In Charge

Uneasy lies the head that wears a crown.
– History of Henry IV, Part II, Act III, Scene 1

Every dealership has one. The man or woman on whose shoulders falls the responsibility for the day-to-day operations of the dealership.

In some dealerships, it’s easy to identify that person. If you are a sole proprietor for example, it’s probably you! In larger dealerships it becomes less and less obvious who that person might be or, more importantly, who that person should be.

Whether you are a business manager, sales manager, general manager or the “owner” of a dealership, it does not necessarily mean that you are the right person to be the “person in charge”.

This matters for two reasons:

1. A “person in charge” is a term of art used in the Motor Vehicle Dealers Act. Under the Act, it is a condition of registration or renewal that each dealer appoints and identifies to OMVIC at least one “person in charge”.
2. When dealers run afoul of the rules and regulations, and OMVIC takes the dealership to Discipline, they often levy fines and impose other requirements against the dealership (i.e. corporation) AND the person in charge.

So ask yourself, who is the “person in charge” at your dealership. This may not mean the same thing as who is the “owner” or “principal” of the operation. Who is the main manager, there all the time, watching and supervising dayto-day affairs?

The answer may surprise you and … it does matter … so be careful who you choose to designate for that role. It carries some potentially severe burdens with it.

If you are unsure who your person in charge is, contact OMVIC. You can also make changes on-line or by use of this form: https://tinyurl.com/yy2qt7on

Temporary Layoff Relief

We last reported on this issue in a Dealer Alert on June 1st.

The Ontario Government has extended the temporary layoff relief for employers, the effect of which is to help ensure a layoff does not automatically become a termination by the passage of time, as would normally be the case. This was set to expire on September 4, 2020.

Under the normal rules in the Employment Standards Act (ESA), a temporary layoff would have been deemed a termination after:

• 13 weeks, if no payments or benefits are continued;
• 35 weeks, if certain payments or benefits are continued; or
• for such longer period that an employee retains recall rights under any applicable collective agreement.

The Ontario Government has extended the amendment of a Regulation under the ESA to allow employers to place employees on Infectious Disease Emergency Leave. This will ensure businesses aren’t forced to terminate employees after their ESA temporary layoff periods have expired.

Workers will remain employed with legal protections and be eligible for federal emergency income support programs while employers will be protected from costly claims for severance or damages.

The extension will now last until at least January 2, 2021.

Consumer Protection Act, 2002 (CPA)

The CPA governs the way businesses relate to their customers, and describes illegal and unfair business practices known as “false, misleading or deceptive” representations and “unconscionable” consumer representations.

Consumers have up to one year to cancel a contract if they have been subjected to an “unfair practice”. This cancellation may be subject to reasonable compensation to the business.

Businesses are expected to disclose information that would be important to the customer in making the final purchase decision, whether or not the customer asks for the information. 

So what are unfair practices? An extreme example would be selling a used car, but telling the buyer it’s a new car. Or telling a consumer a 4×4 was never used “off-road”, when in fact, it was used in the forests of Northern Ontario by the logging industry. It boils down to keeping important “material” facts about what you are selling from the buyer either by outright lies, exaggeration or half-truths.

There are other examples in the CPA of such misrepresentations, such as:

• describing benefits or qualities the goods do not possess
• suggestions that the supplier of the goods has sponsorship, approval, status, affiliation or connections the supplier does not have
• goods are of a standard, quality, grade, style or model that they are not
• saying the goods are available for a reason that does not exist or when the person making the representation knows or ought to know they will not be
• saying a price advantage exists, when it doesn’t
• misrepresenting the authority of the person dealing with the consumer to negotiate the final terms of the purchase
• making false or misleading representations that the proposed transaction carries with it certain rights, remedies or obligations
• misrepresenting the purpose or intent of any communication with a consumer

They all amount to the same message: “say what you mean and mean what you say”.

An “unfair practice” can also arise in cases where:
(a) a consumer can’t protect their interests because of disability, ignorance, illiteracy, etc.;
(b) the price grossly exceeds the price at which similar goods or services are readily available;
(c) the consumer is unable to receive a substantial benefit from the subject-matter of the representation;
(d) the consumer clearly can’t afford the deal;
(e) the consumer transaction is excessively one-sided in favour of someone other than the consumer;
(f) the terms of the transaction are so adverse to the consumer as to be unfair;
(g) a statement of opinion is misleading and the consumer is likely to rely on it to his or her detriment; or
(h) there is undue pressure.

For dealers, this means all information in contracts must be clear, comprehensible and prominent. If sales or lease contracts are missing required information, a consumer could cancel the transaction.

It also means dealers and their employees must be truthful … always!

Even ignorance about a vehicle’s defects or previous use may not be a defence. The CPA refers to things a business knows or ought to know. The CPA assumes that businesses have more resources and experience then consumers in determining the facts about what they sell.

For example, if a customer asks if a vehicle has been in an accident, and you know it has been, you must tell the customer. On the other hand, if you don’t know, don’t say “not to my knowledge”, but instead research and appraise the vehicle, as best you can, so you can answer the question with confidence.

Businesses and their employees found guilty of knowingly violating the CPA may also be liable to substantial fines and even imprisonment, in addition to the civil damages that could be obtained by the consumer in a lawsuit.

As Ontario and the industry gradually re-opened, the UCDA started sending our on-road member ambassadors back on the road to visit members.

Visits to members started in Eastern Ontario and then in some rural areas of the Province where COVID-19 was not wide-spread. Gradually, as the Province has gone to Stages 2 and 3 of the recovery, members are being visited in the larger cities as well.

Our ambassadors have shared a few stories of the PPE measures being taken by some members they have visited. Some have come up with very laudable and creative ways of safely operating during the COVID-19 pandemic.

Here are a few:

At one dealership there was a table set up with a sign that asked visitors to use the hand sanitizer and to wait to be served. At the side of this barricaded area, there was a salesperson who asked what he could do for me. He went and found the person I was looking for and I was able to enter.

On the seats in the waiting area, there was signage that said the seats were sanitized for your safety. On that sign, it said flip over the sign once you get off the chair. The backside of the sign said the seat needed to be sanitized. I thought that was a great idea!!

Another dealership had a similar barricade at the front entrance, along with a promotional cardboard tower that said it was a sanitization station. A bottle of sanitizer fit inside a box in the tower. There were masks on a table as well as gloves for customers to use. At this dealership the staff wore masks and they also had desks with plexi-glass barriers between sales staff and consumers.

Unfortunately, not all members visited were taking the same precautions.

Another dealer had no sanitizer and no one was wearing a mask. The door was wide open, possibly to bring in fresh air, but anyone could walk in unannounced. Our rep was told that most customer visits take place outside and staff don’t wear masks so that customers feel at ease with staff who “look well”.

At one store, our rep, who was wearing a mask, was greeted by someone who wasn’t and seemed unsure how to react. He went to get a manager who said that there was no need for masks. No one wore them there. There was no sign of sanitizer or any PPE.

Many municipalities now have mandatory mask wearing by-laws in force for publicly accessible indoor areas. That includes dealerships. Public health authorities, various levels of government, OMVIC and the UCDA have all issued guidelines and recommendations to help businesses, and in particular dealers, operate safely during the pandemic.

We urge members to review PPE protocols and think out of the box where necessary to ensure that all that can be done is being done to prevent the transmission of COVID-19 to your staff and to customers and other visitors.

Extended Warranty Update

We have added two new warranty providers to our list.

In addition to those already listed, the new additions have satisfied the UCDA that their warranties are fully insured by a licensed Ontario insurer:

Veritas Global Protection Services, Inc. 1-888-222-3020
Central Administrative Service Corporation, Inc. 1-888-222-3020

Each of the companies listed below have provided the UCDA with a copy of its insurance agreement, along with a written undertaking by the insurer to notify the UCDA in the event that the coverage is cancelled or changes are made.

The UCDA asks the recognized warranty companies to have insurers provide annual updates to us, confirming that insurance remains in place.

Verified Insured Warranty Companies

After receiving updates from insurers, here is the current alphabetical list of warranty companies that have met our requirements for insurance recognition:

The UCDA does not endorse any specific warranty company or product, but strongly recommends that members only offer warranties that are insured by a licensed Ontario insurer.

Exporting Concerns

Few issues attract more calls from dealers than sales where the buyer wants to buy a vehicle and pay no tax because they plan to “export” the vehicle out of Canada.

Because of this, we have written in the pages of Front Line repeatedly warning members against the practice of exempting “export buyers” from paying HST. There are several good reasons to avoid this:

1. You are underwriting the buyer’s exemption; if he or she is entitled to recover tax let them ask the HST office for it back;
2. You can’t give delivery to the buyer in Canada. Delivering it to a “shipper” is not good enough. You need solid and correct paperwork, which few dealers are getting.
3. In many cases “export buyers” are actually curbsiders in the business of exporting vehicles overseas.

Often, the “Export Buyer” will offer a bill of lading. Well, a bill of lading is not something a shipper in Mississauga can give you. It is only issued when the vehicle is loaded on a ship in Halifax, Montreal or Vancouver.

Also, we have heard of Canada Revenue Agency auditors asking dealers for proof from Nigeria, Dubai, Kazakhstan or wherever the vehicle went, that the vehicle arrived and was “registered” there, what form such proof would take … WHO KNOWS?

Our advice, charge HST on every sale no matter who or where the buyer is.

If you decide to proceed and not collect HST, be sure to handle the export yourself and use a trusted shipper who is working for you and who will help ensure you are in compliance. You must follow the export rules to the letter.

The rules being cited by the CRA can be found at:
https://tinyurl.com/t7foyoz

OMVIC Mystery Shoppers on the Road Again

OMVIC has announced they will conduct mystery shop visits at dealerships in Durham Region to monitor all-in-price advertising compliance in the coming weeks.

OMVIC says they are doing this ‘secret shopper’ initiative because of ongoing all-in price advertising violations by some dealers whose actions have resulted in consumer harm. Non-compliance is also unfair to those dealers that follow the law.

Reminder: Only HST and licensing fees can be added to the price and the ad must prominently indicate they are not included.

New U.S. Duties on NonAmerican made vehicles

Despite the implementation of the Canada-United States -Mexico free trade agreement on July 1, the United States Government has imposed duties on the import of many nonAmerican made vehicles, on the grounds of national security.

Dutiable Entry Foreign-made vehicles imported into the U.S., whether new or used, either for personal use or for sale, are now generally dutiable. Many, but not all, Canadian-made vehicles are exempt from these duties. Mexican-made vehicles are generally subject to these rates.

Autos are subject to a duty of between 2.5% and 2.8% of the declared price paid for the vehicle. Trucks, including pick-ups, many of which are made in Mexico, are subject to a duty of 25% of the declared purchase price. Vehicles made in Mexico have a VIN beginning with a “3”. If the manufacturer’s label shows the letters “TRU” as the vehicle type, it is considered to be a truck.

For more information contact U.S. Customs and Border Protection (CBP) at 202-325-8000. CBP does not have a toll free number for use outside of the U.S.

NAPA’s Third Quarter Promotion Is “The Golden Ticket”

Have you been participating in the NAPA promotions? It’s simple to do. You just need to be a UCDA member and be registered for the program free of charge. Purchase from your local NAPA store, and if you reach the minimum qualifying amount, you’re automatically entered into the draw.

We would like to congratulate the previous 2020 winners:

• Q1 Winner 401 AutoRV Canada – Visa Gift Card
• Q2 Winners Mark Wilson’s Better Used Cars and Precision Tune Brooklin – each win an IPad with AutoServe1

The COVID-19 pandemic devastated the Canadian and world economies this Spring.

The used vehicle industry in Ontario was no exception. It was almost completely shut down in April, after the Ontario government announced that dealers would no longer be considered an essential service and had to stop on-site sales (though service and repair centres were allowed to remain open).

While in theory, remote sales were permitted (sales made to buyers away from a dealer’s business location), test drives were prohibited by OMVIC. Not surprisingly, few buyers were willing to purchase a used vehicle untested. To make things worse, while bills of sale could be signed on-line, documentation relating to bank financing often could not, making financed deals almost impossible to close.

It quickly became clear that virtual or on-line sales do not work well in the motor vehicle industry, especially the used vehicle industry. Consumers want to see cars close up, sit in them,  touch them and above all, drive them, prior to making their purchase decision. They’re more than happy to find vehicles on-line … but they’re not buying on-line.

After dealers were allowed to re-open by appointment on May 4, business quickly picked up. A couple of weeks after that, dealers with outside storefront entrances could open to walkin customers. Business was certainly not back to normal, but the easing of the restrictions on how and where dealers could sell, made a huge difference to many Members. It likely saved more than a few from closing permanently.

There was clearly pent up consumer demand from the month or so that dealers were shuttered. Buyers have been coming back.

Now the problem is starting to be supply. With the physical auctions shut down, online auctions simply can’t handle the volume of vehicles waiting to be wholesaled and many Members have seen their inventory shrink. Retail prices are now starting to rebound due to these supply issues.

At the UCDA, we closed our office on March 16. Staff have been working from home since then and while it has not been business as usual, we have been able to maintain all of the services and benefit programs that Members rely on, including vehicle searches and bill of sale and other paper form orders. Plans are in the works to re-open the office in July.

Throughout the pandemic, the UCDA has been here for Members, providing regular Dealer Alert updates on government programs to assist businesses and employees and outline proper protocols to help Members carry on business and protect staff and customers during the pandemic.

Tragically, in the midst of the worst of the pandemic, unrelated to COVID-19, the UCDA lost a long-time staff member. Ruth Fleming, who had worked in the Member Services and Legal Services Departments since 1992, passed away suddenly over the Easter Weekend.

Many Members who register liens through the UCDA knew Ruth well and regularly chatted with her. Her passing was a devastating blow to Ruth’s family and friends here at the UCDA. She is sorely missed and when the office re-opens, it won’t be the same without her.

What does the future hold? We don’t know. Will auctions be able to ensure physical distancing and be able to re-open anytime soon? Will dealers be comfortable attending auctions in person? Will there be a second wave of COVID-19 in the Fall?

No one knows the answers to these questions, but if everyone remains diligent in maintaining a safe and clean environment for staff and customers, we’ll hopefully be able to return to some sense of normalcy soon. Don’t let up on using proper protocols relating to physical distancing, wearing masks and frequently sanitizing vehicles and office space. These protocols will continue to be necessary well into the foreseeable future.

https://tinyurl.com/ybh7maaj

Rest assured, the UCDA will continue to be here to help Members carry on through whatever may happen next.

The Elderly Buyer

It’s a fact of life that, as baby boomers grow older, dealers will encounter more and more elderly customers.

While customers in their 70’s, 80’s and 90’s bring a wealth of experience to vehicle buying and ownership, have the security to afford what they want and the “know how” to find it, these customers can also bring unique challenges for dealers.

We often receive calls from members who are being criticized, usually by the extended family of such customers, over deals they have made.

Some complaints relate to issues of “capacity”. For example, the family feel the elderly customer was not able to make the “right” decision, has made a “bad” deal or picked the “wrong” vehicle. In many cases it may just be that the adult children, and other family members, are unhappy that their aged relative is “spending their inheritance”!

How are dealers supposed to treat elderly customers?

With respect! They have contributed their entire lives to our society and economy and have the right to make purchasing decisions like any adult.

How are dealers supposed to respond to the family?

With caution. Remember, they are not your customer, the buyer is. Because of privacy concerns, there is little you may be able to even discuss or disclose to the family, unless the buyer gives you permission, preferably in writing, to do so.

On the other hand, in some cases, the family may be able to produce legal documents, court orders or “powers of attorney” that have some bearing on the issue of your customer’s mental “capacity”. If that is the case, make a copy of the documentation and call the UCDA Legal Department before proceeding.

What issues do dealers need to be alert to?

Be sensitive to any customer who seems confused, distracted or suffering from some disability that appears to affect their ability to understand the ‘to and fro’ of the negotiating process. This is good advice at all times, but especially so when dealing with the elderly consumer.

Be sure about the status of your customer’s driver’s licence and / or insurance. The MTO will suspend the licence of anyone unable to drive safely due to age related or other impairments (in particular for drivers over 80 years of age).

The Ontario Consumer Protection Act, 2002, contains specific warnings to businesses to be alert to consumers who are vulnerable and to avoid unfair or “unconscionable” sales. Such deals must be cancelled and all money refunded. Failure to do so could lead to claims for damages and / or fines.

Keep in mind that for many seniors a motor vehicle is both the symbol of, and the means to, an independent life. It guarantees their mobility and access to travel. All your customers have the right to shop and make purchasing decisions in peace, free from interference by anyone.

If you are ever concerned about any of the issues raised in this article, call the UCDA Legal Department (416) 231- 2600 or 1 (800) 268-2598 before you proceed.

Tricky Customer

Sometimes you just have to laugh. This story came to us by way of a reporter who deals with both sides of the dealer / repairer / consumer divide and shows that sometimes, the customer is not always as forthcoming as they should be when they have an issue:The UCDA does not endorse any specific warranty company or product, but strongly recommends that members only offer warranties that are insured by a licensed Ontario insurer.

A man claims that a transmission shop, which charged him thousands of dollars for tranny work, did a poor job. He drove “up North” and the transmission failed again. The transmission shop had the truck towed back to the shop to see what was up. They found that the transmission was burned out after only 120 kilometres!

Naturally, the transmission shop felt the customer must have had some kind of mishap. The customer of course denied that, so the transmission shop reluctantly agreed to again rebuild the transmission under warranty, but wanted to charge him for the tow from up North.

The customer asked the reporter to help him get the transmission shop to pay for his tow bill as well. The bill was high, so the reporter dug deeper and called the tow company to find out why.

The tow company told the reporter that they had to use two tow trucks to tow the truck, with a twenty six foot boat, attached out of a muddy field!

Not only did the transmission shop not pay the tow bill, they asked the customer to remove the vehicle from their shop as they would not be rebuilding the transmission under warranty after all!

In-House Dealer Registration

We first reported on this issue in November of 2018, as the bill to allow this was before the Ontario legislature. The idea was not a new one, we’d seen a pilot project way back in 2011 along the same lines, but this time felt different. It felt like this Government was truly motivated to proceed with dealer in-house registration and licencing of motor vehicles.

A lot of water has gone under the bridge since then, and much progress too, and then along came COVID-19, which has disrupted the best laid plans of everyone.

Strong progress has been made toward a workable pilot for a Digital Dealer registration office within dealerships. Several UCDA Members were asked to participate, as this will be open to both new and used vehicle dealers, but the planned rollout for a pilot in the Spring has now been delayed.

We will let you know more when we have updates on this, but the Government assures us they remain “committed to adopting digital practices and technologies to deliver simpler, faster, better services to the people and businesses in Ontario.”

A Deal Is A Deal

At one time or another, we have all encountered the buyer who wishes they had made a different buying decision. Some Members are faced with buyer’s remorse complaints from their own customers, or customers of other dealers who come to them with their tales of woe. Often, what it comes down to, is the customer thinks they did not make the “best” deal they could have or think they could have found a better price after the fact and they are not happy.

But does that mean their deal is not binding or legal?

A recent small claims court decision seems to suggest a “bad” deal is still a legal and binding one.

In a case from last summer, a consumer was involved in a Consumer Proposal (a type of bankruptcy process) and was rather desperate for a vehicle. The court suggests that may be why they acted in haste and did not read the lease they signed for 6 months or demand a test drive first.

The court heard they were vulnerable due to their circumstances and claimed difficulty with English, which may be why they agreed to a deal that was perhaps not the best in terms of the lease rate, costs, fees and vehicle condition … but they did make that agreement.

The court said: “As bad as the agreement is however the Plaintiffs agreed to it … [t]he Plaintiffs could have protected themselves, but chose not to.”

People make bad decisions some times, but as adults they are able to enter into such contracts and courts are not going to interfere unless the dealer fails to deliver on what was promised or the vehicle is not as described, which was not the case here.

As the court said, buyer’s remorse “does not justify setting the lease aside or finding against the Defendants. The Court cannot prevent people from entering into bad deals.”

You can read the whole case here:

https://tinyurl.com/ycefhu26

Scams – Stay Alert

COVID-19 has crippled most businesses … but not the business of the scammer.

One of our Members recently had this experience:

A customer came in, expressed interest in a newer used luxury car, said he would go to the bank and came back with a bank draft.

The Member was smart and went to the branch that drew the draft, spoke to the teller who actually wrote it and only then deposited it to their own bank account and delivered the car. Even so, the bank draft was no good. It was bought with fraudulent funds. In the time it took the bank to discover this, the car was long gone.

However, because the Member did their due diligence by visiting the issuing bank, their own bank didn’t make them give up the funds; the issuing bank had to take the loss.

The lesson here … be wary if you do not know the buyer. If they do little in the way of negotiation and they’re quick to come up with a bank draft for a large sum, you should ask yourself some basic questions.

Like certified cheques, bank drafts can be fake. Wire transfers, if done directly from bank to bank, are safer.

Be skeptical. Question bad grammar in emails, sight unseen purchases, large cash purchases with no haggle, rushed transactions and any situation that is out of the ordinary.

Make certain all your staff understand the dangers that lurk out there and protect your dealership from becoming a victim.

Return To Work

Some Members have contacted us with a perplexing problem. As dealers ramp services back up, they are calling employees back from COVID-19 layoffs only to find some do not want to return. Such employees cite COVID fears that may be legitimate, others may be less so, but what does the law say about all of this?

We do not claim any particular expertise in the highly specialized practice of Employment Law (which like Criminal Law is not an area one should “dabble” in), but these links may provide some guidance. The legal consensus would seem to suggest the law is on the employer’s side here, which is not something you hear every day in this complex area of law.

https://tinyurl.com/ya6fm7lf

Q: Can my employees refuse to return to work from a temporary layoff because they earn more on CERB?
A: No, they cannot. If your employees refuse to return to a safe work place when you recall them from a layoff, you can deem them to have resigned and will owe them no severance pay. This would mean that they had voluntarily quit their employment, making them ineligible for the CERB.
https://tinyurl.com/y9dh3sus

Q: How do we handle employees who refuse to come back to work?
A: It’s the employer’s right to have the employee attend at the workplace and that’s particularly so if the employee previously was reporting to a job site and working at the job site.
https://tinyurl.com/y9uk7z66

Q. My workplace has re-opened, but I don’t think it’s safe to return yet. Do I have to?
A. The law is on the employer’s side here, even in a pandemic. If work is available, you are expected to be there, … failure to attend for your regularly scheduled work hours [will be seen as] basically abandoning your job.

Having said this, do NOT get your legal advice from the internet, especially in a highly delicate area like Employment Law. This article is simply meant to frame the issue for you, but the devil is always in the details. Each employee and circumstance is different. So, before you take a formal position with any employee on their refusal to return, get advice from a qualified employment lawyer.

Live By The Sword

A GTA paralegal has learned the hard way that being overly aggressive in a lawsuit can come back to bite you.

Scarborough Mitsubishi performed a Spring Maintenance package for Arnold Miguel at his request, but overcharged him by some $127.97.

When Mr. Miguel pointed out the overcharge error, the store offered to refund the overcharge, but Mr. Miguel decided to sue the store instead in small claims court.

In his lawsuit he alleged the store made “false, misleading and deceptive representations” contrary to the Consumer Protection Act and sought not only a full refund for the repair, but also “punitive” damages of $24,000. Punitive damages are reserved for cases where a court feels a party’s conduct warrants a punishment to make clear certain behaviour should be censored, prevented or deterred.

The court awarded Mr. Miguel the $127.97 he was overcharged (the sum the dealer had earlier offered him anyway) and ordered him to pay court costs for the ill-advised punitive damages claim to Scarborough Mitsubishi in the sum of $2,000.

The court found the store had made a simple and innocent error. The Spring promotion was intended to start on April 1, 2017, but the employee who posted the promotion had done so on March 31, 2017 because he was going to be off work for a couple of days.

The charging code required to bill for the maintenance package was not yet available. He was overcharged, but the court accepted the testimony of the store’s employees that this was an error.

Mr. Miguel doubled down on this turn of events and appealed. Unfortunately for him, the court found his appeal was procedurally flawed, as it was filed too late and on its merits could not succeed in any event, as the trial decision at the small claims court was correct.

The court ordered him to pay Scarborough Mitsubishi court costs for the appeal of another $3,500.

So a $127.97 overcharge dispute, that should have been easily resolved, ended up costing Mr. Miguel $5,372.03!

https://tinyurl.com/yb2j5ru2