Spotlight on the Business Workshops for Artists Series: Navigating Contracts During COVID-19

The COVID-19 pandemic has changed how we do a lot of things, from how we create and consume art, to how we buy our groceries, work and gather for meetings, and on it goes.

Our Business Workshops for Artists Series has also changed over the past year, transitioning to an online format to accommodate public health and safety guidelines, while also giving us the opportunity to reach more people around the province. We are grateful for the support of Cox & Palmer in sponsoring this ongoing series.

Last season, Cox & Palmer were also invaluable in lending their advice and expertise to a number of artists and organizations during their session on “Navigating Contracts During COVID-19,” led by Michelle Willette and Todd Stanley. While navigating contracts can be confusing during the best of times, Willette and Stanley’s clear advice helped participants to better understand the potential implications of COVID-19 on employment and commercial contracts. And with the postponement or cancellation of events this past year, it couldn’t have come at a better time.

Willette covered four key topics during her portion of the presentation, including amendments to the Labour Standards Act, how temporary lay-off works (especially during COVID-19), refusal to work under the Occupational Health and Safety Act, and bringing employees back to work (both a public health and an Occupational Health and Safety issue).

Stanley’s part of the presentation included a closer look at how COVID-19 is affecting commercial contracts, and shone a light on special contracts and issues to watch, as well as what it means if a contract can’t be performed (including a look at “frustration,” which happens when an unforeseen event, beyond anyone’s control, and after the formation of the contract, makes a performance impossible or materially different; and the “force majeure” clause). In addition to looking at existing contracts, Stanley also gave participants an idea of what should go into new contracts being negotiated.

Willette and Stanley’s presentation was jam-packed with helpful information. For those who couldn’t attend, or for those who did but could use a recap, we asked them for their key takeaways (advice which is timely as we look to slowly ease out of another lockdown).

Michelle Willette:

• "Ensure familiarity with the details of Labour Standards Act provisions for: (i) Temporary layoff (including the extension of that time period from 13 weeks to 26 weeks); and (ii) Communicable Disease Emergency Leave;
• Comply with Public Health directives and orders in returning employees back to work, consult with OHS committee in the workplace in designing the return to work protocols;
• Communicate to employees the measures taken and COVID-19 protocols in the workplace in advance of their return to work;
• Ensure front line supervisors are aware of Occupational Health and Safety Act rights of employees to refuse unsafe work and how to properly respond to such assertions by employees."

Todd Stanley:

• "A failure to perform a contract is a breach by default; but if it is because of COVID-19 there may be ways to avoid any liability.
• Contracts can deal with unforeseen events through force majeure clauses which can release obligations, but these have to have been included when the contract is formed and if present, need to be reviewed carefully as its language will govern the situation.
• If a contract does not have a force majeure clause, there are still ways to deal with an inability to perform a contract because of COVID-19 through frustration, but it can be complex.
• In any scenario you have duties to act reasonably and mitigate damages and impacts.
• For new contracts, the recommendation is that wherever possible use written contracts as opposed to oral agreements, and now expressly deal with COVID-19 issues (such as possible future lock downs) to avoid uncertainty in the future."

A big thank you goes out to Michelle Willette and Todd Stanley for their great presentation and helpful advice!

(Through our Business Volunteers for the Arts program, we’ve also helped a number of artists and arts organizations access advice relating to contracts and other matters. Find out more here.)

Our Business Workshops for Artists Series continues on March 31 with “The (Short) Story of You: Crafting Your Artist Bio with Ease,” facilitated by Christine Hennebury in partnership with artsUNITE / UNITÉ des arts. You can learn more by clicking here.