Legal blog by WARDS LAWYERS PC.

Featuring "Hard Labour" by Jason Ward


LET IT SNOW! SHOVELING AND YOUR DUTY AS A HOWEOWNER

Let it snow, let is snow, let is snow......What am I obliged to do, as a homeowner, for snow and ice?

In Ontario, homeowners have a a duty to keep their property reasonably safe for others.

Section 3 of the Occupiers’ Liability Act (Ontario) reads:

3. (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

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(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.”

This means that you, as a homeowner, need to keep your driveway, steps and the like reasonably clear of snow and ice for others who visit you, including delivery people, guests and even strangers, such as canvassers and people trying to inspect your hot water heater to sell you an allegedly better program.  

If you do not, you may face liability for failing to keep your property reasonably safe for others.

While home insurance is designed to offer some protection to you, it is important that you act reasonably to keep your property reasonably clear of ice and snow – you should not do nothing and rely on a home insurance policy to protect you if you are sued. Claims will also cause your premiums to increase, too, if your home insurer does not decide to drop you as a insured client altogether if you make a claim and you failed to take reasonable steps to keep your property reasonably clear of ice and snow.

There is also a question in Ontario about whether a homeowner must also take reasonable steps to keep the municipal sidewalk clear of dangerous snow or ice. The best practice is to keep it monitored and, if the municipality is not properly clearing it regularly and keeping it in good condition, taking steps should be considered, such as shoveling, using sand or salt and calling the municipality to attend to take proper steps.

You should take these steps as soon as you can after a snowfall or ice build up. If you are too busy or away, you should consider hiring a snow removal contractor to help you or ask a neighbour to do it for you temporarily.

Avoid a lawsuit, be winter safe at your home.   

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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MAJOR CHANGES COMING FOR WORKPLACE VIOLENCE AND (SEXUAL) HARASSMENT - YOU NEED TO BE READY

New changes will be coming online in Ontario about sexual harassment and violence in workplaces. They are not yet in effect, but are expected to be the law in mid-2016.

Bill 132 -  the Sexual Violence and Harassment Action Plan (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015.

This new law is based on the recent Ontario government report early this year: “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment”.

Bill 132 will bring changes to Ontario’s Occupational Health and Safety Act (OHSA). They will impact every employer in Ontario, which will need to audit and review their existing policies for harassment and violence in the workplace.

The Current Law

Bill 168 is now in effect in Ontario. It means that employers, under the OHSA, must create and implement workplace violence and harassment policies and procedures, train employees on those, institute an employee complaint process, investigate complaints, conduct workplace violence risk assessments, warn employees of certain individuals if violence is an issue and undertake reasonable steps to protect employees from workplace (including domestic) violence.

Bill 132 is taking workplace violence and harassment another step.

What Will Change?

1.         The Definition of “Workplace Harassment”:

Bill 132 will change definition of “workplace harassment” to include “workplace sexual harassment”:  

  • engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome; or 
  • making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.

Bill 132 suggests that “reasonable” performance management and direction to workers will not be considered “workplace harassment”. This is the law in Ontario currently, but affirms that employers can take reasonable steps when facing frivolous harassment complaints from employees who claim a poor performance appraisal constitutes harassment.

2.         More Obligations for Workplace Programs and Policies:

Now, the OHSA requires that employers create a workplace harassment program that includes measures and procedures on reporting incidents and investigating and dealing with incidents. Bill 132 would require that the workplace harassment program be expanded to: 

  • include measures and procedures for workers to report incidents to a person other than his/ her employer/supervisor if that person is the alleged harasser;
  • set out how information obtained about an incident or complaint (including any identifying information) will not be disclosed unless the disclosure is necessary for the purposes of investigating or taking corrective action or if required by law; and
  • set out how the alleged victim and perpetrator (if a worker) will be informed of the results of the investigation and of any corrective action that has been taken as a result of the investigation.

3.         New Specific Duties on Employers:

The OHSA does not currently impose specific duties on employers related to workplace harassment, other than creating a policy/procedure and training staff. This is different from the more detailed, specific duties related to “workplace violence” in the OHSA. This is considered to be a loophole in the law in Ontario.

Bill 132 is aimed at closing this loophold by specifying that in order to protect a worker from workplace harassment, an employer must ensure that: 

  • an investigation is conducted into incidents and complaints;
  • the alleged victim and harasser (if a worker) must be informed in writing of the results of the investigation and any corrective action taken as a result of the investigation; and
  • the workplace harassment program is reviewed at least annually to ensure that it adequately implements the employer’s workplace harassment policy.

4.         More Power to the Ministry of Labour (Ontario):

The Ministry of Labour (“MOL”) will be given more powers, including permitting inspectors to order an employer to investigate a workplace harassment incident and to engage an “impartial person” (who the inspector believes is qualified) to conduct the investigation and to issue a written report.

The inspector can order that the employer pay the costs involved of engaging the “impartial person”. This may mean inspector could effectively outsource an investigation to a third party and possibly make the employer pay for the expense to do so. There are no guidelines addressing this in the current version of Bill 132 – effectively it is up to the inspector. This is a very important change if Bill 132 is enacted.

What Does this Mean for Employers?

These changes, if passed, will be important.  

The definition of “workplace harassment” will be expanded - employers will need to amend their policies and procedures to specifically include “workplace sexual harassment”.

Existing workplace harassment policies, procedures and training will need to be audited and improved. Specific duties will need to be considered and, with the new MOL power to order an external party to investigate, this is a clear signal that harassment issues in the workplace must be taken seriously and be fully and properly investigated.

This also means sexual harassment is not only a human rights issue covered by the Human Rights Code, but also a workplace safety issue covered by the OHSA. Therefore, in addition to human rights liability, employers can be exposed to orders, fines and even prosecution. Employers can be charged for their pending and expanded obligations for workplace harassment.

If Bill 132 comes into force (which is expected to be in mid-2016), employers should be prepared by reviewing existing policies and upgrading and revising them to be compliant. 

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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HOLIDAY PARTY TIME! SOME TIPS TO EMPLOYERS THIS YEAR

It's that time again - holiday party!!!!!!!

With the fun comes the responsibility (and potential liability to employers).

Benjamin T. Aberant and Shana Wolch, lawyers at McCarthy Tetrault LLP offer this very helpful blog about tips for office holiday parties (Lexology, Nov. 6, 2015):

"The holiday season is a jolly-busy time to be an employment lawyer. Not only do we get to spend time with our friends and families, but we are also often asked to help our clients deal with the fallout of the infamous alcohol induced holiday party incident.  Of course, an ounce of prevention is worth a pound of cure and here are some tips to planning and hosting a successful and (hopefully) incident free holiday party.

  1. Alcohol Consumption

The over-consumption of alcohol can lead to a number of unfavourable outcomes. Consider limiting the in-take of alcohol by guests by: setting a fixed period of time where alcohol will be served; restricting the types of alcohol that are served (e.g. serving wine and beer options, excluding spirits or hard liquor); providing a controlled number of drink tickets per guest; hiring an independent bartender; and, serving lots of delicious food so guests don’t only drink.

  1. Location & Transportation

Consider holding the party offsite. Consider safe transportation options that are available for employees when leaving the party. Pre-arrange designated drivers or transportation with a local company; ensure that there are taxis on standby and/or provide taxi chits to employees; or use a licensed operator to drive the individual and his/her vehicle home.

  1. Discrimination

Given the abundance of faiths, religious denominations and practices with which employees may affiliate themselves, ensure that holiday parties remain non-denominational in nature. Consider the possibility that alcoholics or those recovering might be attending and ensure that there are tasty non-alcoholic alternatives.  Ensure that employees don’t feel excluded and eliminate the likelihood of a human rights violation.

  1. Harassment

Where alcohol is being consumed, there is an increased risk of inappropriate behaviour. In order to remind employees of expectations regarding mutual respect, it is good practice to distribute a copy of the organization’s anti-harassment policy well in advance of the holiday party.  Ensure that employees are mindful of their actions toward others while in attendance. Including a copy of the organization’s dress code may also be worthwhile, reminding employees that expectations for appropriate attire in the workplace remain unchanged.  Consider inviting spouses/partners – it might help keep behaviour in line.

  1. Communication & Monitoring

Transparent and consistent communication of expectations surrounding alcohol consumption, appropriate behaviour and suitable attire, well in advance of the holiday party, will ensure that employees are aware of their responsibilities. Providing details about transportation options prior to the holiday party, will afford employees with the opportunity to arrange their journey home safely and without setback.

Assigning one or two individuals from the organization with the responsibility to monitor guests’ behaviour and alcohol consumption, and ensure that they obtain appropriate transportation home, will further safeguard employees and reduce the organization’s liabilities."

So, enjoy the blow out, but practice good pre-planning and management of your holiday party.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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WORKPLACE DRESS CODES - DO I REALLY HAVE TO WEAR THAT? WHAT AM I ALLOWED TO WEAR?

Effectively, there needs to be a reasonable and proved link between the dress code and the workplace.

For example, a bar/restaurant may find it difficult to justify requiring female servers to wear short, sleeveless dresses and boots or heels, especially if their counterpart male servers wear something more conservative. Certainly the Bier Markt in Toronto may be experiencing this now, while it responds to a complaint under the Human Rights Code for discrimination on the basis of sex related to its female server dress code.

There are not many cases in Ontario about this, but there are some.

Some examples:

a) a Hospital was not permitted to require employees to avoid wearing piercings and to cover tattoos in the workplace – this policy was found not to address reasonable workplace concerns and was based on unsubstantiated assumptions and stereotypes; and

b) a policy prohibiting jeans and shorts in the workplace was held to be invalid – it was not proved to negatively impact the employer’s reputation or image and, therefore, unjustifiably infringed the employees’ own choice of apparel in the workplace.

If a dress code can be demonstrated to relate to an employer’s health or safety policies in the workplace, it can be successfully imposed. If, for example, a piece of safety equipment is a legitimate and bona fide health and safety requirement, it can be reasonable for the employer to impose it – example: a hard hat that had to be worn by a Sikh employee was held to be reasonable by the Supreme Court of Canada.

Generally, if a dress code or specific item is to be imposed, employers should give proper consideration to these questions and potential risk factors:

  • Is the dress code reasonable and relates in a verifiable way to the nature of the work?
  • Will the dress code adversely affect one type or group of employees, but not others?
  • Will the imposition of a dress code result in a significant change to the employee’s workplace and the nature and circumstances of that employment? [If so, consider if the employee refuses to comply and claims a constructive dismissal, in which case the employee may be entitled to damages for reasonable notice and other damages)?  
  • Does the dress code potentially offend the Ontario or Canada Human Rights Code, keeping in mind the different types of discriminatory grounds such on the basis of sex, gender, sexual orientation, creed (religion)?
  • Does the dress code potentially run afoul of health and safety requirements in the Occupational Health and Safety Act of Ontario and other applicable occupational health and safety regulations?
  • If there is unionization, is the dress code consistent with the collective agreement?
  • Is the dress code clearly defined and will it be consistently applied?
  • Who will be responsible for the cost of the required dress – it should likely be the employer?
  • Should reasonable, advance notice of the dress code to employees be provided, both at the commencement of the employment relationship and/or when a dress code is being imposed during employment?
  • Should the consequences of failing to adhere to the dress code be communicated to employees and, if so, when and how should that be done?

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

 

 

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EMPLOYERS - KNOW YOUR NEW ACCOMMODATION RULES FOR EMPLOYEES - EFFECTIVE JAN. 1, 2016 - THE AODA, 2005

More important changes will affect employers and employees in Ontario as of Jan. 1, 2016 as part of the AODA phase-in.

Requirement: Accessibility for Ontarians with Disabilities Act, 2005

Date of Requirement Below: Jan. 1, 2016

The AODA contains an Employment Standards section. Employers must establish new internal practices regarding the recruitment, accommodation and advancement of employees.

Among other things, employers with 50 or more employees must now, in writing:

A.       

Implement Individual Accommodation Plans – a written process that must include:

  1. the manner in which the employee requesting accommodation can participate in the development of the individual accommodation plan;
  2. the means by which the employee is assessed on an individual basis;
  3. the manner in which the employer can request an evaluation by an outside medical or other expert, at the employer’s expense, to determine how accommodation can be achieved;
  4. the manner in which the employee can request the participation of their bargaining agent, or other representative (if not unionized), in the development of the accommodation plan;
  5. the steps that will be taken to protect the privacy of the employee’s personal information;
  6. the frequency and manner in which the individual accommodation plan will be reviewed and updated;
  7. if an accommodation plan is denied, the manner in which the reasons for denial will be proved to the employee; and
  8. the means of providing the individual accommodation plan in an accessible format; and
  9. if requested or required, include information regarding the employees accessible formats and communication supports provided, individualized workplace emergency response information and any other accommodation measures provided.

B.       

Implement a Return to Work Process for employees who have been absent from work due to a disability and require disability-related accommodation in order to return to work, which must, in writing:

  1. outline the steps that the employer will take to facilitate the return to work of employees who were absent because their disability required them to be away from work; and
  2. use individual accommodation plans (as discussed above) as part of the process.

WSIB?

If an employee’s illness or injury is covered by the return to work provisions of the Workplace Safety and Insurance Act, this process is not required for that employee and the WSIB’s process will apply.

Overlap with Ontario Human Rights Code:

These new processes, in writing, should also be incorporated and aligned with the accommodation requirements of the Ontario Human Rights Code, too and the steps taken by employers to accommodate an employee for the Code.  

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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PARENTS MAKING ADULT CHILDREN JOINT ACCOUNT HOLDERS - KNOW THE LAW - MORE ABOUT LEAVING A LEGACY OF LITIGATION

Recently I blogged about parents placing their adult children as joint holders of a bank account or other asset and the risks of doing so: http://www.wardlegal.ca/blog/24124

Lori M. Duffy and Hayley Peglar, lawyers at Weir Foulds LLP, recently blogged about this issue, too. Their blog is a great summary of the perils that can materialize with joint accounts established by a parent (often elderly or suffering from a disability) and an adult child - it is certainly worthwhile readings: 

"Common Misconceptions about Joint Accounts and Joint Ownership

Elderly parents will often put their money into bank accounts held jointly with their adult children, or transfer real property into a joint tenancy with one or more of their adult children. Sometimes, this is done for expediency so that an adult child can help manage the asset. In other cases, this is a planning technique used to avoid estate administration tax when the parent dies.

Whatever the motivation behind the transfer, there is a persistent misconception that the asset passes to the surviving child when the parent dies and does not form part of the parent's estate. In fact, there is a legal presumption that such assets belong to the deceased parent's estate. The adult child bears the burden to rebut the presumption and to prove the parent intended to gift the asset to the adult child.

The Pecore Framework

In Pecore v. Pecore[1], the Supreme Court of Canada set out a framework of analysis for gratuitous transfers to adult children. First, a presumption of resulting trust applies to gratuitous transfers of property from a parent to an adult child. Second, a trial judge must start his or her inquiry with this presumption and then weigh all evidence to determine, on a balance of probabilities, the testator's actual intention at the time of the transfer.

Justice Rothstein, writing for the majority in Pecore, set out factors the court may consider when determining the testator's intention. In Mroz v. Mroz[2], discussed below, the Court of Appeal added to this list of factors. The factors include, but are not limited to:

  • evidence of the transferor's intention subsequent to the transfer;
  • the wording of banking or financial institution documents;
  • control and use of the funds in the accounts;
  • the terms of any power of attorney granted to the transferee;
  • the tax treatment of the accounts; and
  • evidence of the transferor's conduct after the transfer, to the extent it is relevant to the transferor's intention at the time of the transfer.

The Recent Court of Appeal Trio

In a trio of recent decisions[3], the Court of Appeal for Ontario reaffirmed the principles established in Pecore. These cases illustrate some of the factors the court will consider.

Sawdon Estate v. Sawdon dealt with an aging father who put bank accounts into joint names with two of his five children. He told the two children that when he died, the funds in the account should be distributed equally among all of his children. A residuary beneficiary argued the accounts formed part of the estate. The trial judge held that the presumption had been rebutted. This was upheld on appeal, although on slightly different grounds. The Court of Appeal found there was compelling evidence before the trial judge that when the two children became the legal owners of the bank accounts, they did so on the understanding they were to distribute the remaining funds equally among all five children after their father died. As a result, the Court held that the deceased made an immediate inter vivos gift of the beneficial right of survivorship to his children, and that the accounts did not form part of the estate. In that case, there was compelling evidence about the testator's intention.

In Mroz v. Mroz, an elderly mother transferred title of the family home (her only significant asset) to herself and her daughter as joint tenants. At the same time, she executed a will which included bequests to her two grandchildren that were to be paid from the proceeds of sale of the house. The daughter failed to pay the bequests and the grandchildren challenged the transfer. The trial judge held that the presumption was rebutted, but that the deceased intended the grandchildren's bequests be paid from the proceeds of sale of the house. The Court of Appeal reversed the decision on the basis that these two conclusions were inconsistent. It was clear from the deceased's will that she did not intend her daughter to be the sole beneficial owner of the house. The Court held that the presumption was not rebutted and the house formed part of the estate.

Finally, in Foley v. McIntyre, the Court of first instance dismissed an action to set aside three inter vivos monetary transfers and a testamentary bequest of Canada Savings Bonds made by the deceased to his daughter. The Court of Appeal upheld the decision and agreed with the trial judge's conclusions that:

  1. the deceased had capacity at the time of the transfers;
  2. the daughter rebutted the presumption of resulting trust with clear evidence that the deceased intended the funds to be a gift; and
  3. the deceased was not unduly influenced.

With respect to the Canada Savings Bonds, the Court of Appeal held that the presumption of resulting trust was not rebutted, and the bonds formed part of the deceased's estate by way of resulting trust. As a result, the bonds passed to the daughter pursuant to a specific bequest in the deceased's will.

Take Away Considerations

These cases remind us that the Pecore framework is alive and well. Adult children should not assume, or treat, assets held jointly as their own in the absence of clear evidence that the deceased intended to gift the asset to the adult child. Similarly, parents who wish to gift assets to adult children through joint ownership should carefully document their intention and should review their testamentary documents to make sure they do not contain anything that could call their intention into question and lead to litigation."

To view all formatting for this article (eg, tables, footnotes), please access the original here.

WeirFoulds LLP - Lori M. Duffy and Hayley Peglar

 

 

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EMPLOYEE PROTECTION FOR MAKING LEGITIMATE COMPLAINTS ABOUT WORKPLACE SAFETY

The Case: Le Safecross First Aid Limited, a recent decision of the Ontario Labour Relations Board

The Issue:

The employee made a complaint to his company about safety conditions in the workplace. He complained the conditions caused him to suffer ongoing knee pain and discomfort. 

Shortly after, he was terminated by the company.

The company argued there were other reasons for his termination, but ultimately the Board concluded that those reasons were unjustified and, therefore, the true reason must have been that the employee made a complaint about the safety conditions in the workplace.

The company alleged that it has made a final, written warning to the employee about his poor performance before he made the complaint. However, the employee disputed this and, because the company did not call sufficient evidence about this, the Board concluded that the final warning actually meant that the company, shortly before the termination, must have believed that a further warning, rather than termination, was justified. Therefore, the company, in trying to establish other reason(s) for termination other than the complaint, actually prejudiced its own case. An interesting feature about the case. 

Pursuant to the reprisal provisions of the Ontario Occupational Health and Safety Act, the Board ordered the reinstatement of the employee and that the company had to pay him his lost wages for the period between his termination and the reinstatement date.

The Lesson:

Employers should be careful when terminating an employee and consider all of the information on hand. If termination for cause is alleged, particularly, due consideration must be given to the justification for doing so. In this case, the employer's own strategy backfired. Employees are protected to make legitimate safety-related related complaints about the workplace.

 

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GET 'R' DONE - NOVEMBER IS NATIONAL 'MAKE A WILL' MONTH

It’s estimated that more than half of Canadians do not have a will. This applies to many lawyers, too.

Why?

Well, many just don’t like to think about it.

Or -

“I can’t find time to get around to it”

“I can’t afford it right now”

“I don’t really need one”

Whatever the reason, your estate plan is very important. 

Here are a few of what I consider the important reasons to have a Will.

With no Will:

- your Estate may be given to family members you do not wish to benefit (under Ontario’s Succession Law Reform Act)

- your separated spouse may benefit from a share of your estate, which you may not intend

- if you have a common law spouse, they may not benefit from your estate, but that may not be your intention

- your step-children may not be entitled to any benefit from your estate, if you intend to give them a benefit

- if you have a spouse, that person may be entitled to $200,000 of your estate ‘off the top’ (or the whole estate, if your estate is valued at less than $200,000), with anything more than this amount divided between your spouse and your children surviving you

- if you have no spouse or no children/grandchildren, etc., your estate may be divided between your remote family members/relatives, some of whom you may not even know

- your children may be entitled to receive their share at age 18, with no trust or other oversight of the money, such a a trust for them being set up to manage the money until you wish for them to have it  

- if you have minor children, the money may have to be paid into Court, which is a costly, litigious experienced often

- you will not be able to appoint a guardian for your minor children (effective for 90 days if you do so in your Will), or express your wishes for who should care for your children, which is often considered by the Court if conflict arises

…to ensure the right person is administering your estate, and that the administration occurs in a costeffective and timely manner.

- someone will have to hire a lawyer to apply to the Court to be given authority to administer your estate, which is often costly and time-consuming, until which time your estate will likely be frozen

- someone may apply for this authority who you do not want to be in charge of administering your estate

- your estate may have to pay more estate administration taxes to the Ontario government (1.5% on the value of your assets, generally) than if you plan your estate plan properly, leaving less for your intended beneficiaries

-   if you have any foreign property, it can be complicated and costly to try to administer that if you have no Will, leaving less for your intended beneficiaries

- you may pay more taxes to the federal government than is necessary (you are deemed to dispose of your assets at fair market value on your death and there may be tax payable on your capital gains on your assets), but your Will can help you defer taxes on your death (example, property you give to your spouse on death may defer the tax payable into the future)

- most importantly, often passing away without a Will will increase the risk of litigation among your family members (and extensive fighting, lawyers’ fees and time in the Court system) – a legacy you would likely prefer to avoid if you have a proper estate plan in place

- you lose control over your estate if you do not have a Will – your estate may go to beneficiaires you did not intend

Having your estate plan done by a qualified lawyer is fairly inexpensive and, in my view, well worth the investment. If you do not have a Will, there is certainly a risk that you (through your estate) will pay far more ultimately to litigation lawyers if a dispute arises because you had not Will in place. 

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

 

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DENYING ACCESS TO A GRANDPARENT - AUTONOMY, YES, BUT NOT ARBITRARY

In Ontario, grandparents face a challenge when they are denied access to their grandchildren.

A new Ontario case – Nicholas v. Herdman (2015) is a case in point.

This case mostly affirms the traditional approach of the law to grandparents seeking time with their grandchildren.

Here, their granddaughter was two years old. The parents would not allow any access by the grandmother and only limited, supervised access by the grandfather. The grandparents alleged they had played a close, important role in their grandchild’s young life, including caring for her because the parents could not afford childcare. They alleged they had a loving relationship with their granddaughter.

The evidence indicated family stress – the grandparents did not care for their daughter’s new partner. Family conflict abounded, to the point that their daughter severed her relationship with these grandparents (and, therefore, their relationship with their granddaughter).

The affidavit evidence in the case was contradictory. Ultimately the grandparents claimed that their daughter had acted arbitrarily and capriciously, which was not in their granddaughter’s best interests.

The parents responded by claiming they were protecting the granddaughter from the grandmother’s manipulative and controlling behavior, which allegedly had transpired for years before. They also claimed both grandparents’ behaviour was increasingly erratic, unstable and emotionally damaging to them and the granddaughter.

In short, the allegations exchanged by both sides were hurtful, inflammatory and very contradictory in nature – often a challenging exercise to sort through in Family Court.

Grandparent Access Law Generally in Ontario

The starting point: section 21 of Ontario’s Children’s Law Reform Act, which provides for ‘a parent of a child or any other person’ to ‘apply to the court for an order respecting custody of or access to the child.’ Custody of or access to a child must be determined on the basis of the best interests of the child, pursuant to sub-section 24(1) of that legislation.

The oft-referred to case in Ontario for this area is Chapman v. Chapman, a decision of the Ontario Court of Appeal. Interestingly, this case started in this area initially. In this case, the Court held that that parental autonomy for making decisions for or about children should be respected in the absence of any evidence that the parents’ conduct an inability to act in the children’s best interests. A Court should generally defer to the parent’s decisions about grandparent access unless all three of the following tests are met in the circumstances:

a) Is there already a positive grandparent-grandchild relationship?

b) Has the parent’s decision negatively impacted or imperiled the positive grandparent-grandchild relationship?

c) Has the parent acted arbitrarily?

The Outcome of This Case

Based on third party evidence from extended family members, the Court found that a positive relationship between the granddaughter and her grandparents existed – they were actively involved in her care.

The Court also found that the parents’ conduct imperiled the relationship between the granddaughter and her grandparents. For example, the child had seen her grandmother five days per week for several months of her young life. What’s more, the stipulation that supervision is necessary for the grandfather to see his granddaughter when none was previously required had a significant impact on the grandfather-granddaughter relationship and the frequency of contact.

The Court also held that it was clear since the grandchild had been born that her mother desired for her parents to be a part of her child’s life. However, over a period of a few months, the parents began feeling that the grandparents were being controlling and manipulative of their parenting, their care of the granddaughter, her activities and her relationship with other extended family members. Therefore, the Court concluded based on all of the evidence that the parent’s decision to terminate access was not arbitrary and not a capricious or isolated action. It was, finds the Court, a result of long-term conflict that finally materialized to the point of no return.

The Court also found that the parents were loving, capable and made decisions affecting their daughter in their daughter’s best interest generally. The Court accepted they had legitimate and genuine issues and concerns, for some time, about the grandparents efforts to diminish them and marginalize their role in their daughter’s life and upbringing.

Following the Chapman case, this Court gave deference to these parents’ autonomy to decide if these grandparents should pay a role in their granddaughter’s life, as there was no evidence satisfying the Court that the grandparents’ behaviour demonstrated an inability to act in accordance with the child’s best interests. Without that evidence presented by the grandparents, they lost and were granted no parental rights, including no access. 

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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SURE, YOU'VE LET ME GO FROM MY JOB, BUT YOU'D BETTER PAY ME MY BONUS THIS YEAR - RIGHT?

An employment bonus, or sometimes referred to as incentive payment, are voluntary and non-contractual payments if they are truly discretionary.

Bonuses, if they are to be paid, should be, but sometimes are not, specifically addressed in the employment contract. Many employers simply include a clause declaring that any bonus paid is purely "discretionary". These clauses may also contain restrictions on the payment of future bonuses, such as that the employee must be actively employed at the time the bonus would ordinarily be considered and given by the employer. Of course, on termination, this often causes a dispute, because the employee may be terminated prior to when a bonus might otherwise be considered and paid for that employment year. 

An important factor to consider is also whether the bonus was a recurring event - was it actually paid consistently over time, or was it a 'one-off' bonus? If it was paid consistently by the employer, there is more likelihood that a Court would find it was a recurring and important part of the employee's regular compensation, even if it is labelled "discretionary" in the employment contract.

When an employee is terminated, particularly without cause, employers often take the position that any bonus previously paid is not payable for the employee's reasonable notice period, because the bonus was "discretionary" by the employer, rather than required as part of the employee's regular compensation plan. 

However, simply calling a bonus "discretionary" in the employment contract does not insulate an employer from claims for bonus amounts by terminated employees.

Employers can limit bonus entitlement on termination by using clear, unambiguous contractual language. Therefore, if an employer uses bonuses in the workplace, employers should clearly address an employee's bonus entitlement in the event of resignation, retirement, termination with cause, and termination without cause.

If an employer does not intend to pay bonuses to employees during the reasonable notice period, this needs to be addressed directly in the employment contract and in any bonus plan. Any ambiguity most likely will be resolved against the employer.

To illustrate, in the Ontario case Grace v. Reader's Digest Assn (Canada) Ltd. [1995], the Court held:

"The case law is clear that ... where the employer seeks to rely on a term requiring the employee to meet certain conditions such as being on the payroll as of a certain date, the employer must communicate that requirement to the employee. If the employer has failed to do so, then the employee is entitled to claim the bonus."

If an employer pays a bonus in the workplace, the employer should ensure that: a) the rights and entitlements for the bonus are clearly and simply set out in the employee's contract; and b) it has a bonus policy enacted, which is brought to the employee's attention, that is consistent with the employment contract.

In Ontario these days, unless employers can point to clear, unambiguous language in the employment contract indicating that a bonus is not payable on a termination or resignation, most likely an employee will be able to successfully claim the bonus payment, including for a reasonable notice period on termination.

It is important, therefore, for employers to seek proper legal advice for their employment contracts, especially if bonuses are to be paid in the workplace. Simply declaring they will be "discretionary" is not likely sufficient.

Some important cases on this issue in Ontario:

Taggart v. Canada Life Assurance Co. [2005]

Grace v. Reader's Digest Assn (Canada) Ltd. [1995]

Jivraj v. Strategic Maintenance Ltd. [2014] (This is an Alberta case, but has been applied in Ontario)

Chandaran v. National Bank of Canada [2011]

Both employers and employees should seek qualified legal counsel before entering into an employment contract in Ontario, or potentially face unintended litigation about the consequences of the relationship breaking down. Clarity, simplicity and compliance with the current law in Ontario are necessary and effective for enforceable employment contracts. 

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

 

 

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EMPLOYERS AND LANDLORDS - PAY ATTENTION TO BILL 132 - SEXUAL VIOLENCE AND HARASSMENT - YOUR NEW OBLIGATIONS

Bill 132: the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015.

This new, proposed Ontario law is part of the Ontario government’s three-year action plan: “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment” released in March of this year.

Employers, educational institutions and landlords will face new obligations. For example:  

Employers – Ontario’s Occupational Health & Safety Act will be changed to increase employers’ obligations with respect to workplace harassment programs, imposing more duties to protect workers from workplace harassment and ensuring that incidents are adequately and appropriately investigated with the outcome conveyed to complainants and alleged harassers. Inspectors would also be permitted to order employers to have workplace harassment investigations conducted by impartial third parties.

Landlords and Tenants – Ontario’s limitation period legislation and the Residential Tenancies Act, 2006 will be changed to remove obstacles and improve the rights of victims of sexual violence. These changes will remove certain limitation periods for lawsuit proceedings based on sexual assault and for compensation applications to the Criminal Injuries Compensation Board. The changes would also allow tenants the right to terminate residential leases on short notice where the tenants are facing domestic or sexual violence.

The Ontario government has also pledged to launch a public education and awareness campaign, increase funding and support for community-and-hospital-based sexual assault and domestic violence treatment centres and to improve the experience of and legal aid available to sexual assault survivors in the criminal justice system.

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HAVE I BEEN CONSTRUCTIVELY DISMISSED? HOW DO I KNOW? AND WHAT DO I DO?

What is “constructive dismissal”? The law in Ontario has been changing over the past year or so.

Generally, it may occur when an employer unilaterally makes a fundamental change to an employee’s terms of employment. This may be, for example, a pay reduction, a significant change to the employee’s duties or position, or even a job relocation. It can also potentially occur in the case of harassment in the workplace, for example. Unpaid suspensions can also trigger a constructive dismissal. Even a paid suspension from work can potentially cause a constructive dismissal, if it is found to be an unreasonable suspension (even with pay).  In Ontario, even a temporary lay-off (which is authorized by the Employment Standards Act of Ontario), can be a constructive dismissal if the employee did not expressly agree to this in his or her employment agreement.

Essentially, it is an action by the employer (or that occurs in the workplace) that makes it untenable and unreasonable for the employee to continue to be employed. Often employees will resign and bring a claim for constructive dismissal. However, that strategy should be carefully considered by employees in Ontario. 

Employers have to be careful before making these types of unilateral and fundamental changes in the workplace.

Similarly, employees have to be cautious in their decision-making. Now in Ontario, employers have the ability, if an employee makes a complaint about constructive dismissal, to invite the employee to continue to be employed during the notice period that the employee would otherwise be entitled to receive arising from the dismissal (i.e., the common law reasonable notice period).

However, there are pitfalls for both sides in a constructive dismissal matter. For example:

- Employers, if they offer continuing employment to the employee, must make this offer only after the employee has made a complaint of constructive dismissal, or the employer may not be protected from paying damages to the employee for the dismissal

- Employees must carefully consider any offer to remain employed by the employer, as employees have a duty to mitigate their damages arising from a dismissal and, if they refuse to agree to continue to be employed and it is found by the Court that it was reasonable for in the circumstances to have done so, the employee may not be entitled to any damages

- Employees must also make their complaint for constructive dismissal promptly when they believe it takes place, or the Court may find the change was accepted by the employee (meaning there was no dismissal and, therefore, no damages payable by the employer)

Employees should give careful consideration to their position before resigning and seeking damages on the basis of constructive dismissal. This is a tricky area and often heavily weighted by the facts in the specific case.

Similarly, employers need to tread carefully in making significant changes in the workplace and, if a constructive dismissal complaint is received, in reacting to it, legally.

Good advice from a qualified employment lawyer is essential to both the employer and employee if a constructive dismissal matter arises in the workplace.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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DESIGNATING YOUR RRSPs FOR YOUR ESTATE PLAN - BEWARE OF THE TAX - OPTIONS TO AVOID CREATING LITIGATION AMONG YOUR BENEFICIARIES

Generally, you can designate a beneficiary for your RRSPs.

If you do, generally the RRSP will be paid to your designated beneficiary on your passing. The RRSP will not form part of your Estate and, therefore, not be subject to Ontario’s estate administration tax.

However, the problem: the federal Income Tax Act provides that, even though the RRSP will pass to your designated beneficiary (outside of your Estate), tax will be payable by your Estate on those funds as of your death (as if you had withdrawn those funds). This can create a burden on your Estate and its beneficiaries, which they may perceive as unfair. In other words, your designated beneficiary gets the RRSP funds, but not the corresponding tax burden created by the Income Tax Act on your death.

This often causes litigation, which you were likely trying to avoid in your Estate plan.

Careful estate planning is important, including considering potential tax issues that can arise on your death.

There are some ways to potentially avoid this, such as:

1.            Having an insurance policy, payable to your estate, for example, that will pay the tax burden on the RRSPs that you designate to someone on your death;

2.            Rolling over your RRSPs to your spouse or a dependent child, if you meet the specific requirements of the Income Tax Act to do so (consultation with an accountant or tax-experienced lawyer would be helpful); and/or

3.            Designate your Estate as the beneficiary of your RRSPs – although this will mean estate administration tax is likely payable on those funds, that is likely less of a financial burden to your beneficiaries than the alternative. The Estate can receive and pay the tax on the RRSP on your death using this approach. You can even specify in your estate plan that the net amount is payable to a specific person, such as the person you could have designated as your beneficiary on the RRSP.

Estate planning is important. To avoid unintended results and possibly creating conflict among your family member beneficiaries, creating your plan with a good, qualified estate planning lawyer is well worth the modest investment.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

 

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SO, YOU HAVE BEEN DEFAMED - THE BASICS AND WHAT TO CONSIDER:

Defamation has two forms: libel (written words) and slander (spoken words).

For a defamation case, as person must prove:

1.            the words at issue were defamatory (meaning they would negatively impact the person’s reputation in the eyes of a reasonable person);

2.            the words, in fact, referred to the person complaining about those words; and

3.            the words were published (meaning they were written or said to a person other than the person who is complaining about the words).

Generally, the legal way of understanding 1 above is:

“Expressions which tend to lower the reputation of a person in the estimation of right thinking members of society generally or which expose a person to hatred, contempt or ridicule are defamatory.”

If these three elements are proved, damages are generally presumed and the onus shifts to other person to prove a defence to avoid liability.

There are many defences raised by defendants in defamation cases. For example, if the defendant can prove the words were “true”, it usually means liability is avoided. There are also special occasions that offer protection to those who defame others, such as in Court documents (allegations, etc.). There are a number of other defences available, too, some of which are quite legally complicated.

Ontario also has the Libel and Slander Act, which imposes statutory law to defamation. For example, special notice requirements apply if the defamation is published in the media, for example. In addition, defamation in the context of a person’s profession can also be actionable even if specific (monetary) damages cannot be established.

Sometimes, defamation creates a balance between protection reputation and free speech. This often arises in the context of defamatory statements made in the media or sometimes online.

Generally, damages awards in Ontario for defamation cases are somewhat modest, particularly in cases not involved mass, publication through media.

More cases are emerging over defamatory statements made online, particularly through social media and discussion blogs and forums. Those cases tend to be challenging to deal with, including whether the host of the blog or discussion forum should also face liability.

Ontario also has adopted legislation about apologizing to others. This legislation does not protect a person from liability, but is intended to try to prevent lawsuits from happening and encourage disputing parties to resolve before a lawsuit. If offers some protection to those who do apologize, too.    

Defamation is a fairly specialized legal field. If you feel that you have been defamed, or you are accused of doing so, you should speak to a lawyer qualified and experienced with this area of law. This is a very brief outline about this area of law only, which is quite extensive and often complicated. 

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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SEPARATED PARENTS CLAIMING ELIGIBLE DEPENDENT AND CHILD PERSONAL TAX CREDITS - MAKE SURE YOUR AGREEMENT IS PROPERLY WORDED

The case: Letoria v. R (2015) - a decision of the federal Tax Court of Canada

By their Family Court Order, made on consent, Mom and Dad agreed to:

1. shared parenting of their child;

2. calculate what each owed to the other for Table child support (based on their respective incomes from all sources); and

3. declare that the Dad would pay the set-off amount to Mom (because his child support payment was higher at the time).

Note: The Order declared what Table child support amount each owed to the other, but only required the Dad to pay the set-off amount to Mom.

Subsequently, the Dad filed his personal income tax return for that year claiming a personal tax credit for eligible dependents and the child amount, per section 118 of the federal Income Tax Act.

The Tax Court denied his claim for these personal benefits.

Effectively, because the Family Court Order did not expressly indicate that the Mom had to pay child support to Dad, the language in the Income Tax Act denied the Dad the ability to claim these personal tax benefits. A complicated analysis, no doubt, but the Court ultimately determined that the Income Tax Act would have to be changed to allow a shared-parenting parent to claim these benefits, if the approach is to be pay the set-off amount between each party's child support obligation to the other. 

What does this mean to you? Make sure you obtain qualified legal and accounting advice for your family law matters. Here, if the Dad had done so, he likely could have structured the Court Order to allow him to successfully claim these personal tax credits in future. By not doing so, he not only will not received those credits, but he presumably incurred substantial legal expense in being told he could not do so.

There is often interplay between family law and tax issues that have to be considered and, if they are not, the financial implications can be harsh.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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