COVID-19 is changing not only the business landscape, but how the legal profession serves its clientele.
In fact, one could argue that COVID is creating an entirely new field of law.
“We’re seeing employers coming to us, because there’s been a downturn in their industry and they’re facing staffing challenges and how to find solutions,” says Fiona Novosel, an associate with Ogilvie LLP who focuses on employment law and commercial law and leasing. ”We’re advising them. We’re advising employees, as well, because the reality is that they’re being temporarily laid off, they’re losing their jobs and they’re being offered severance packages. We’re advising on both sides… We have tenants coming to us because they can’t afford to pay their rent. And we’re having landlords coming to us as well, saying, ‘how can I make this work with my tenant?’”
Most leases or employment contracts don’t have “global pandemic” clauses. So, as businesses try to work with landlords to get rents reduced, to try and bring costs down, they are working in what’s really a legal grey area.
The same holds true for employees facing layoffs or wage rollbacks because of the virus’s effects on their employers’ bottom lines.
“It’s definitely thrown up some interesting legal issues and challenges,” says Novosel, who came to Canada from Scotland. ”And what we’re finding, especially in the employment realm, is that things are evolving so quickly, you have to always be on top of changes to the legislation.”
As well, in a legal system that depends on case law, there really are no precedents when it comes to COVID. So, when the lawyers are looking at issues arising because of the pandemic, Novosel admits they’re in a grey area.
“There is no court case on this. No court has ever considered this issue. This is uncharted territory. This is something that’s completely new and completely foreign. There are things we can say, but, inevitably, it’s untested.”
Moving courts online
Courts were already overbooked before COVID; the virus has only exacerbated the case-load issue in this province. So put that together with the lack of case law, and the push is on to keep prospects’ litigants from, well, litigating. That means hammering out new deals, without going to court.
In theory, it’s nice to imagine a world where a landlord and tenant, or an employer and employee, could come to a handshake agreement. But handshake agreements or ideas written down on cocktail napkins don’t protect either party.
So, that’s why the lawyers are needed. To turn handshake deals into binding agreements.
Elaf Khadhair completed her Bachelor of Law (honours) Juris Doctor at England’s University of Southampton, and her NCA requirements through the University of Alberta in law at both the University of Alberta and at England’s University of Southampton. She says that, despite the uncertainty that comes with COVID, it’s a perfect time to reassess the system.
“With these unprecedented circumstances, this is a good time to adapt, to rethink, to reconsider a lot of things,” she says. “Like, how the court system operates. I think it’s great how the court has willingly adapted from in-person applications to now having some of these applications happening over Webex or the phone or desktop applications. And everyone from lawyers to judges are working together to make sure the system is working effectively. I think that, in any field right now, especially one that relies on personal interactions, there has been a transition to online platforms. So, given its effectiveness, it’s one thing that will stay in the court system.”
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This article appears in the Winter 2021 issue of Edify.