Please see the following as published by my law firm, MSK, on March 26, 2020:

As a part of our ongoing series in keeping our clients and friends abreast of various changes to policies and laws resulting from COVID-19, please find the latest updates below.

COVID-19 Causes Coverage

The SEC announced that it is modifying prior relief to cover certain filings due on or before July 1, 2020. Read more…

SEC Sets Course on COVID-19 Disclosure

The SEC has provided a list of questions for companies to consider when assessing COVID-19-related disclosures. Read more…

Keeping Employees Posted

The Department of Labor has released a model Families First Coronavirus Relief Act notice that eligible employers must post as well as FAQs on where and how to post it. Read more…

America CARES

As details of the Coronavirus stimulus bill (CARES) emerge, we find many aspects relate to tax relief. Read more…

DOL Provides Guidance

The Department of Labor has released an initial Q&A related to the Families First Coronavirus Response Act. Read more…

FAQ On FFCRA

Here is a quick reference guide on the Families First Coronavirus Response Act. Please check back frequently for updates as we provide them. Read more…

Please see the following as published by my law firm, MSK, on March 24, 2020. The following contains articles written by me and my colleagues at my firm.

After a busy weekend of Shelter In Place orders and various other developments involving COVID-19, our latest alert below is rather lengthy and covers many different topic areas.

Freedom Of (All) The Press?

While the Shelter in Place order considers news and media organizations as “essential” businesses, what exactly falls under “media service” is not clearly defined and may put some “nontraditional” media companies at risk for noncompliance. Read more…

Golden State Stays Home

As Governor Newsom, Mayor Garcetti and other government officials in California issue Executive Orders on sheltering in place, various questions arise around conflicts in orders and definitions of essential. Read more…

North America, Bordered Up

The latest agreements between the U.S., Mexico and Canada facilitate only essential travel at this time. Read more…

Careful With The Remote

Dealing with increased cybersecurity risks and privacy concerns mount as more people work from home. Read more…

Don’t Get Stuck With COVID-19

The agencies which regulate immigration visas are overwhelmed with procedural change due to governmental travel bans. Your business and its employees could be severely impacted. Read more…

Big Apple Shrinks

Governor Cuomo of New York issued a statewide executive order on March 18th, which went in to effect over the weekend, that shuttered thousands of businesses based on the definition of “essential.” Read more…

Pirates Find New Shelter

The ever-expanding shelter in place orders around the country seem to have driven a surge in pirated online content. Read more…

EEOC on COVID-19

The EEOC recently updated its guidance on how CDC guidelines influence ADA laws during a pandemic. Read more…

Pardon The Interruption, Again

Impediments exist in various business interruption policies. Further explanation and discussion of the evolving landscape over COVID-19 can be found here…

Tax Filing Reprieve

Federal and California tax filing deadlines extended 90 days. Read more…

Please see the following as published by my law firm, MSK, on March 20, 2020:

As part of our ongoing series in keeping our clients and friends abreast of various changes to policies and laws resulting from COVID-19, please find the latest updates below.


Families First

New sick and family leave policies become law in response to coronavirus. Read more…

Big Apple, Small Business

New York City’s Mayor announces two programs specifically geared towards assisting small business. Read more…

Volatility Provides Opportunity

Current market conditions, driven by the COVID-19 virus, is creating a unique opportunity for multigenerational wealth transfer. Read more… 

COVID-19 Triggers Savings

The USPTO announced suspension of reinstatement fees for certain trademark applications affected by COVID-19. Read more…

WARNing

California Governor Newsom’s executive order suspends 60 day notice requirement for layoffs and cessation of business. Read more…

Merger Modifications

How COVID-19 is affecting various rules, timing, and procedures relative to corporate mergers. Read more…

Shareholder Distancing

Shareholder meetings in the Age of “Social Distancing” and COVID-19. Read more…

Please see the following as published by my law firm, MSK, on March 18, 2020. The following contains articles written by me and my colleagues at my firm.

As the COVID-19 crisis rapidly evolves, the health and safety of our employees, clients and our communities remain our highest priority. We wanted to share with you what we are doing as a firm. We have instructed attorneys and staff in all of our offices to work remotely (with rare exception for certain critical functions). This is happening seamlessly as part of our business continuity plan. We have been working round-the-clock in counseling clients on today’s mission-critical issues, from employment to immigration to tax, as it relates to the outbreak of COVID-19. Like you, we are constantly monitoring the situation, and we will provide additional updates in the coming days and weeks as appropriate. In the meantime, we want you to know that our thoughts are with you and your families, and we hope that you remain healthy and safe.

In an effort to support you during these uncertain times, we have assembled a firm-wide COVID-19 response team from all of our practice areas. For the coming weeks, and starting today in this alert, we intend to send a consolidated communication alert on a regular basis that touches on breaking news and relevant items that could affect you or your business across a range of topics. If there is anything else that we can do to help you during this challenging time, please do not hesitate in reaching out.


Pardon The Interruption

Many contracts contain force majeure (or Act of God) clauses. What do yours say? Your policies include business interruption insurance. Does it cover interruptions related to COVID-19? Read more…

Uncle Sam Expresses Patience

Taxpayers will be allowed to defer payments up to 90 days. The coronavirus stimulus bill provides for several accommodations. Read more…

Telecommuting? Buckle Up

The COVID-19 pandemic is pushing companies towards universal telecommuting. Your cybersecurity training and policies might need updating. Read more…

Privacy As A Priority

The global pandemic is putting a strain on balancing the needs of information with privacy. How much do you communicate if one of your employees tests positive? Read more…

Shipping Contracts Force Majeure

Can you get out of your shipping contracts by invoking the force majeure clauses? It depends on what those clauses state. Read more…

In normal times, the Canada Border Services Agency (“CBSA”) conducts verifications (audits) of importers to ensure that they are in compliance with Canadian customs laws (e.g., origin, tariff classification, valuation, etc.).  On March 26, 2020, we received the following notification from a CBSA Trade Compliance Officer with whom we are engaged on a file:

“Due to the impact that COVID-19 is having on individuals and businesses, the Canada Border Services Agency (CBSA) will temporarily suspend trade compliance activity interaction with importers/exporters and representatives until April 20, 2020. Effective immediately, all deadlines imposed in connection with the verification are automatically extended by a period of time equivalent to the period of suspension. Given the circumstances, the length of this suspension period may be re-evaluated at a later date. For greater clarity, the CBSA is continuing to process drawback claims, applications for the Duties Relief Program, and B2 requests for adjustments, and these are unaffected by this temporary suspension.”

What this means is that current trade compliance verification activities are suspended – but this is just a delay.  Importers still must comply with Canada’s import and customs laws.  Verifications and enforcement actions will start again.  Any errors made during the COVID-19 pandemic crisis may be the subject of a future verification.

For more information, please contact Cyndee Todgham Cherniak at 416-307-4168 or at cyndee@lexsage.com.

In response to COVID-19, the Ontario Ministry of the Attorney General announced  an important procedural change for serving documents in relation to civic proceedings to the Crown and Crown-related entities. The Ontario Attorney General announced that documents for civil (non-criminal) proceedings, administrative proceedings or intended proceedings must be served by e-mail starting on March 24, 2020.

This procedural change is ordered by an emergency order issued under the Emergency Management and Civil Protection Act.

 

Who Should be Served by E-mail Under this Order?

All documents for civil (non-criminal) proceedings, administrative proceedings or intended proceedings to be served on the Crown, and Crown-related entities, must be served by e-mail starting on March 24, 2020.

The Crown-related entities which must be served by e-mail are:

  1. Ministers of the Crown, including the Attorney General of Ontario;
  2. the Children’s Lawyer;
  3. the Public Guardian and Trustee, and;
  4. the Director of the Family Responsibility Office.

 

What Should I Include in the E-Mail?

E-mails must include the sender’s name, address, telephone number and e-mail address.

The Ontario Attorney General has advised that e-mails should less than 10MB. This limitation is most likely a restriction due to mailbox sizes. Counsel who have files larger than 10MB can use software to reduce the file size. If reducing the file size is not sufficient, counsel should ask for permission to send the documents in a series of e-mails.

Counsel should use “delivery receipts” and “read receipts” if your email system includes these features. These tools can be helpful in ensuring that the email was successfully delivered.

 

What E-Mail Address Should I Use?

The following chart provides a break-down of e-mail addresses for originating processes to be served on the Crown and various Crown-related entities:

Crown/Crown-Related Entity E-Mail Address
Originating processes (e.g., a notice of claim, a statement of claim, a notice of application or other document that initiates a proceeding) to be served on the Crown or any Minister of the Crown including the Attorney General of Ontario cloc.reception@ontario.ca
Notice of Constitutional Question to be served on the Attorney General of Ontario clbsupport@ontario.ca
Any legal document required to be served on the Director of the Family Responsibility Office frolegalservice@ontario.ca
For matters required to be served on the Children’s Lawyer including service on any other person where a document must be left with the Children’s Lawyer OCL.LegalDocuments@ontario.ca

 

For matters required to be served on the Office of the Public Guardian and Trustee including service on any other person where a document must be left with the Public Guardian and Trustee PGT-Legal-Documents@ontario.ca

 

E-mail address of the counsel of record for the Crown, Minister, Family Responsibility Office, Children’s Lawyer or Public Guardian and Trustee in any ongoing proceedings (for any documents other than originating processes) Counsel should refer to their records to find the e-mail addresses for the counsel of record for any ongoing proceedings.

 

Other Important Details

The person serving the documents should still take care to take detailed notes regarding the name of the person served, the date, time, and any other related details. These notes will be useful when preparing an Affidavit of Service.

 

The Ontario government is also suspending Ontario limitation periods and procedural time periods retroactive to March 16, 2020.

 

The Ontario Attorney General has provided an updated Guide to Serving Documents which provides important details regarding these new changes.

On March 16, 2020, the Canada Border Services Agency (“CBSA”) issued Customs Notice 20-08 “Imported Goods for Emergency Use in Response to COVID-19”, which discusses the circumstances where customs duty and goods and services tax (“GST”) /harmonized sales tax (“HST”) and excise tax relief will be granted for goods imported into Canada that will be used in the fight of COVID-19. The relief is granted regardless of origin of the Emergency Goods.

Customs Notice 20-08 provides information on the use of the Goods for Emergency Use Remission Order (“the Order”), (C.R.C., c. 768), (the “Order”) and application of Tariff Item No. 9993.00.00 of the Customs Tariff in response to the COVID-19 pandemic.

Firstly, Tariff Item No. 9993.00.00 of the Customs Tariff will be used to grant customs duties relief for Emergency Goods.  Emergency Goods (as set out in Customs Notice 20-08) are “goods required for an emergency and are imported by or on behalf of federal, provincial or municipal entities involved such as centres for health care as well as by or on behalf of members of first response organizations such as police, fire and local civil defence groups, including medical response teams.”  Based on the definition, the goods must be imported by or on behalf of:

  • a federal government of Canada entity (e.g., Public Services and Procurement Canada);
  • a provincial or territorial government of Canada entity (e.g., the Ontario Ministry of Health);
  • a municipal government entity (e.g., Toronto Hydro); or
  • a first response organization such as police, fire, civil defence groups, medical response teams (the list is not limited).

While there is a requirement that the governmental entities be involved in health care for the relief to be granted, it is expected that broad latitude will be given to this requirement.  So many government entities are working cooperatively to respond to the COVID-19 pandemic that the procurement lines will not be restricted to direct health ministry procurements.

Persons not listed above are not entitled to the relief. For example, individuals who import face masks, hand sanitizer, UV equipment, etc. will not be entitled to the border taxes relief and will still have to pay the duties and taxes for imported goods by courier/mail or in their luggage.

What is not clear is whether private operators of retirement homes and nursing homes would qualify.  It is also not clear whether private health care providers may utilize the relief – these entities should see a ruling if they wish to get relief from duties and taxes.  That being said, goods imported from Canada’s free trade agreement partners most likely will receive preferential tariff treatment under a free trade agreement.  For example, if a ventilator manufactured in the United States is imported from the United States, it will be duty free.  Whether face masks and hand sanitizers are duty free will depend on the application of textile rules of origin.

Normally, Tariff Item No. 9993.00.00 grants temporary relief for goods that are to be re-exported.  However, Customs Notice 20-08 provides that “all goods for which relief is granted, shall be exported from Canada whenever they are no longer required except goods that are consumed or destroyed during the emergency”.  This means that goods that are consumed or destroyed during the COVID-19 pandemic will be granted relief if they are used and cannot be exported. Temporary Importation (Tariff Item No. 9993.00.00) Regulations waives the requirement to provide proof of export for goods consumed or destroyed in an emergency.

Second, the COVID-19 pandemic is considered to be an emergency for the purposes of the Goods for Emergency Use Remission Order.  As a result, GST/HST and any other taxes applicable under the Excise Tax Act will be covered by the Goods for Emergency Use Remission Order.  In other words, the CBSA will not collect GST/HST and excise tax on the imported emergency goods.  Further GST/HST and excise tax will not become payable in the goods are used or destroyed during the period of emergency.

The CBSA is going to expedite the clearance of Emergency Goods.  Customs Notice sets out the following instructions for paperwork to be used in connection with the Emergency Goods:

  • A Form B3-3 is required; and
  • At time of import, special authorization code 73-2529 is to be entered in field 26 and “9993” should be entered in field 28 of Form B3-3.

No security deposit will be collected by the CBSA for Emergency Goods.

The CBSA maintains the right to examine any importation of Emergency Goods and to post-release verifications may be conducted to ensure compliance with the Tariff Classification, Valuation, Origin and Marking programs, and any other applicable provisions administered by the CBSA.  In other words, the paperwork still needed to be correct so that trade data can be gathered.

If you require more information or want assistance with ensuring that the correct tariff classification and valuation method is used and the correct rules of origin are applied, please contact Cyndee Todgham Cherniak at 416-307-4168 or at cyndee@lexsage.com.

On March 18, 2020, the Canada Border Services Agency (“CBSA”) issued Customs Notice 20-09 “Changes in Requesting an Extension to the 90-day Period to Submit Corrections” in which the deadline for filing corrections is automatically extended by 30 days. Normally, when the CBSA issues a final report to an importer under audit (called a “trade compliance verification” in Canadian customs language), the importer normally is given only 90 days to make the corrections requested by the CBSA.  According to Customs Notice 20-09, the deadline will be automatically extended by 30 days.  Now importers who receive a final report from the CBSA have 120 days to file their B2 corrections (on an individual basis or by filing a blanket B2).

It is important to note that Customs Notice 20-09 does not change the “reason to believe” rules and only applies to situations where there have been a trade compliance verification.  Voluntary B2 Adjustment Requests still need to be filed within 90 days of a reason to believe.

Customs Notice 20-09 does not suggest the extension of time is only temporary.  It seems to appear that an administrative change will continue after the COVID-19 crisis has subsided.

Customs Notice 20-09 would apply to origin corrections, tariff classification corrections and valuation corrections.

If you require more information, please contact Cyndee Todgham Cherniak at 416-307-4168 or at cyndee@lexsage.com.

On March 19, 2020, the Canada Border Services Agency (“CBSA”) released Customs Notice 20-10 “Waiver of Late accounting Penalties”  granting relief during the COVID-19 crisis.  The notice provides that certain late fees (also known as administrative monetary penalties (“AMPs”)) and late accounting penalties are being waived for transactions released between March 11, 2020, to May 14, 2020, inclusively.  It is important to get commercial goods across the border and truckers/carriers are not going to be penalized with monetary penalties if their paperwork is not filed in time.

Customs Notice 20-10 sets out the following:

1. This notice provides information regarding late accounting penalties (LAP).

2. As per the Accounting for Imported Goods and Payment of Duties Regulations, importers are required to submit accounting declarations for imported goods released on minimum documentation within the required time frames. Late accounting penalties are applied when these timelines are not met.

3. Section 3.3 of the Customs Act provides authority to the Minister or a delegated official to waive penalties or interest payable under the Act under certain circumstances.

4. The World Health Organization characterized the outbreak of the coronavirus disease (COVID-19) as a pandemic on March 11, 2020.

5. The Canada Border Services Agency (CBSA) recognizes that the impact of this pandemic may result in difficulties with submitting a timely accounting for imported goods.

6. As such, the CBSA has decided to provide for a 45 business days grace period for late accounting penalties. Clients will not have to submit an application to have late accounting penalties waived. This applies to transactions released from March 11, 2020, to May 14, 2020, inclusively.

7. The grace period will be subject to review as the situation evolves, in which case an update to this notice will be issued.

8. For any questions, please contact CBSA.External_Appeals-Appels_Externes.ASFC@cbsa-asfc.gc.ca.

At midnight on March 20, 2020, in an attempt to control the spread of COVID-19/coronavirus pandemic, Canada and the United States closed their shared border to non-essential travel for a period of thirty (30) days (which can be extended to a longer period of time).  “Non-essential” travel includes travel that is considered tourism or recreational in nature.  The border remains open to commercial traffic.  Truckers, carriers, couriers, and drivers are doing important work keeping the food supply flowing and supply chains running smoothly. We want truckers to continue to do this critical work.

Many truck drivers have Fast and Secure Trade (FAST) cards. FAST is a trusted traveler program between Canada and the U.S.. Truckers are able to use a special lane that is intended to expedite clearance at the border. FAST Card members must continue to meet all the terms and conditions of the program and comply with all applicable laws and regulations in both Canada and the United States.  To read more about the FAST program – please go to the CBSA website.

What would happen if a Canada Border Services Agency (“CBSA”) officer confiscates a FAST Card?

It would be devastating because valuable time will be used in slower lanes and wasted during more extensive examinations of vehicles. It will be devastating even though traffic at the border will be reduced during the COVID-19 border shutdown.

In recent years, confiscations of FAST Cards happened regularly and it will be devastating to a trucker if it happened during the COVID-19 border shutdown.  As a result, truckers need to be very careful to check their loads. Attention to detail is more important now.   Truckers need to ensure that their paperwork is in order.  Truckers need to ensure Advanced Commercial Information about their load is sent to the relevant customs authorities. Truckers need to ensure that if they pick up personal goods for friends and family, they declare all those personal goods (along with their commercial goods) at the Canada-U.S. border to the CBSA or U.S. CBP, respectively.

If the worst happens and the CBSA confiscates a FAST Card, there is an appeal mechanism. An appeal of the confiscation can be filed with the Recourse Directorate within 90 days of the confiscation.  The process is not fast (no pun intended).  It can take many months for the Recourse Directorate to gather the relevant facts and make a determination as to whether to reinstate FAST privileges. When filing an appeal, it is more important than ever to prepare a detailed and complete appeal.

If a trucker has failed to declare goods, it is not likely that the CBSA will be forgiving and may not re-instate the FAST Card.  We recommend that truckers declared all goods acquired in the other jurisdiction.  Remember all of your receipts and paperwork.

Truckers need to be careful about what videos they have on their mobile devices.  If the CBSA conducts an examination of the contents of a mobile device and find prohibited materials (e.g. child pornography, obscene materials, hate propaganda, etc.), the CBSA may confiscate and cancel a FAST Card membership.

If you require assistance appealing the confiscation of a FAST Card, please contact Cyndee Todgham Cherniak at 416-307-4168 or at cyndee@lexsage.com.