Legal blog by WARDS LAWYERS PC.

Featuring "Hard Labour" by Jason Ward


WARDS LAWYERS' ANNUAL 13 TIPS FOR A LEGALLY-CONSCIOUS/FUN CHRISTMAS DAY - MERRY CHRISTMAS!!!!!

WARDS PC LAWYERS’ ANNUAL LEGAL TIPS FOR CHRISTMAS DAY

 

Our annual (non-exhaustive) tips to you and your family for a safe, fun and legally-prudent Christmas Day for 2015:

1)         On Christmas Eve after early bed time, apply a liberal, but discreet, thin layer of baby powder on the floor outside each child’s room to discourage middle-of-the-night stocking snooping;

2)         When you retire on Christmas Eve to wait for Santa, fasten green painter’s tape plentifully between the newel posts at the top of the stairs to further discourage over-enthusiastic stocking visitation before Mom and Dad are up, dressed, coffeed-up and ready to go (enough to ensure a child cannot pass through the tape wall without sound and extensive effort);

3)         Turn over the toy gift and actually untie/unravel all of those annoying twist-ties holding your child’s toy in its excessive plastic packaging – don’t try to jam scissors or a sharp knife in to that tight space to try to cut the ties where they wrap around the toy itself;  

4)         Prevent your child (and husband/father) from testing the 9 volt battery for the new toy by pressing it on their tongue – this has actually caused injury and emergency room visits;

5)         Take out all of the pins from your new shirt before trying it on; 

6)         Avoid conveniently grabbing the sharp knife from the kitchen to cut open the hard plastic packaging for that toy – take the time to find and use the correct tool, like scissors or a utility knife with a guard;

7)         Pick up the broken pieces of the hard plastic wrapping from the floor after the gift unwrap – avoid the pieces getting lodged in a barefooted, housecoat-wearing, messy-haired family member;

8)         Read the Pot of Gold chocolate index before selecting – there are reported cases of severe allergic reaction caused by mistakenly believing your choice was the cherry-filled (i.e., avoid the marzipan one);

9)         Don’t carve the turkey after consuming three (3) alcohol drinks or more;

10)      Leave adequate space between you/your children and the Christmas tree branches when retrieving gifts under the tree – eye lacerations are a common Christmas morning accident;

11)      Remind your elderly family members at the Christmas dinner to chew their meat thoroughly – most Christmas mishaps often involve choking at X-Mas dinner;

12)      Ensure the zipper is drawn down before your enthusiastic child tries on that new jumper, coat or hoodie – a common source of eye injury on the holiest of mornings; and

13)      Pull the knife across the avocado and twist it (to remove the stone), rather than stabbing down and prying it out – there are recorded emergency room visits about this.  

Merry Christmas, from WARDS PC LAWYERS!

This WARDSPC 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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GOING IT ALONE - REPRESENTING YOURSELF IN YOUR COMPLAINT TO THE ONTARIO HUMAN RIGHTS TRIBUNAL - CAUTION

Any person in Ontario can apply to the Ontario Human Rights Tribunal to allege that an employer, for example, has discriminated against that person based on a protected ground under the Ontario Human Rights Code, such as disability.

Often these applications are made by employees who are terminated, but who allege that the employer discriminated against the employee by terminating him or her while that employee had a disability.

Increasingly, these applications are made and prosecuted by self-represented employees.

In fact, approximately 75% of applications to the Tribunal are made by self-represented parties.

This can create risk to the employee, but also be challenging for the responding employer (and its legal counsel) and the Tribunal itself.

Self-represented parties will be held to the same legal burden as those who are represented by counsel.

In reality, however, self-represented parties are given flexibility in procedural requirements and are regularly accommodated by the Tribunal, much more so than if that person were represented by a lawyer.

However, the recent Tribunal case of Luthra v. CAPREIT Limited Partnership (2015, HRTO 1658) is a good example. The applicant brought an application under the Code alleging the employer violated her rights. She lost, because she did not properly establish her case and meet the legal burden on her to succeed in a discrimination-based complaint.

The Applicant’s case was dismissed for a number of reasons, including because:

  • she alleged discrimination due to her “record of offences”, believing this meant her disciplinary record at work, when it actually means a criminal record under the Code;
  • she did not properly claim discrimination in her initial application and had to request the Tribunal to amend her documentation at the last minute (at the hearing, in fact) to plead that she experienced discrimination based on a disability;
  • she did not call proper evidence linking her alleged harassment and discrimination to her employer’s knowledge of her disability that she in fact suffered;
  • she gave evidence about her discussions with her employer at the hearing regarding her alleged disability, but never mentioned anything about her alleged disability in her initial application to the Tribunal;
  • she did not properly link the employer’s alleged misconduct towards her to an actual disability she suffered prior to being terminated by the employer; and
  • generally, she testified of unfair treatment of her in the workplace at the hands of the employer, but did not properly link that alleged misconduct by the employer to any protected ground under the Code, such as a disability.

Effectively, the applicant tried to use the Code to seek redress, but without any proper grounds for actually doing so or, if she did have grounds, she did not properly set them out and prove them in her case.

While lawyers are expensive and generally there are no costs awarded in Tribunal proceedings, they are time-consuming, lengthy and require significant resources.

Self-represented parties should consider this before bringing a Code application, including ensuring that his or her case is properly and adequately set out with the necessary legal and factual grounds to succeed.

This WARDSPC 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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EMPLOYEE LEAVES, SUES AND WINS - CONSTRUCTIVE DISMISSAL

More employment cases are being decided in the Small Claims Court. It has a limit of claims of $25,000 or less.

Historically, it is challenging for an employee to successfully sue for “constructive dismissal”. This takes place when the employee feels the situation has been made intolerable by the employer, justifying the employee to leave employ and sue for damages as if the employee had been terminated.

To successfully win a case for constructive dismissal, an employee must typically prove:

1.   a fundamental breach of the employment agreement or relationship by the employer;

2.   the employee did not condone that breach; and

3.   the employee did not unreasonably refuse a return to employment or to ‘mitigate damages’.

The case: Janice Wiens v. Davert Tools Inc. (2015, Ontario Small Claims Court)

In this case, the employee succeeded. The Court found the employee had been constructively dismissed and awarded her 8.5 months of salary based on her 8.5 years of employment.

The employer had argued that she quit and that it had complied with its obligations under the Employment Standards Act, 2000 (i.e., it did nothing wrong).

Effectively, the Court found a constructive dismissal based on:

- several layoffs of the employee, even though they technically complied with the Act

- a change in the reporting structure for the employee

- a yelling incident (by the owner/boss)

So, it is possible to succeed in constructive dismissal claims, but due care must be given to the necessary things to prove before leaving your employ and claiming constructive dismissal.

This WARDSPC 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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STILL GETTING SPAM EMAILS? YOU CAN DO SOMETHING ABOUT IT - THE LAW WILL HELP

Rogers Media Inc. (“Rogers”) recently paid $200,000 as part of a settlement involving the CRTC for Rogers’ alleged violations of Canada’s anti-spam legislation (“CASL”). 

The CASL requirements about Commercial Electronic Messages (“CEMs”) have been the law since July 1, 2014.

Rogers is not the first to be fined. Porter Airlines paid a significant penalty earlier ($150,000). A company called Compu-Finder paid a very significant $1.1 million earlier for “spamming” businesses.

The CRTC alleged that Rogers had:

  • sent CEMs either containing an unsubscribe mechanism that did not enable the person to indicate their wish to no longer receive messages, or that was not able to be “readily performed”;
  • sent CEMs for which the unsubscribe mechanism did not contain an electronic address that was valid for the required minimum of 60 days after the message was sent; and
  • failed to give effect to unsubscribe requests within the required 10 business days.

Rogers settled – perhaps wisely. 

Rogers agreed to other remedial measures, too, such as updating and implementing a better internal compliance policy for spamming, reviewing and revising its written policies, developing training programs and registering and tracking all complaints related to CEMs and their resolution.

Individuals are not immune for anti-spamming law in Canada. Up to $1,000,000 per infraction for individuals and up to $10,000,000 per infraction for corporations.

CASL is administered through a complaints-based system and the CRTC provides a Spam Reporting Centre for the submission of complaints. 

Individuals and businesses utilizing CEMs should review the requirements of the CASL to ensure they are complying with the legislation.

This WARDSPC 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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TERMINATING DUE TO BAD FINANCIAL TIMES - SORRY, EMPLOYEES STILL ENTITLED TO FULL PAYMENT

When assessing pay in lieu of reasonable notice in an employment termination case, Courts generally consider the employee’s position and responsibilities, length of service, age and the availability of other employment generally.

Ontario’s Court of Appeal has recently clarified the law in Ontario – an employer’s financial circumstances are not relevant to determining an employee’s entitlement to reasonable notice on termination – Michela v. St. Thomas of Villanova Catholic School (2015, Ontario Court of Appeal).

While it is often the employer’s poor financial circumstances that have created the need to terminate the employment relationship, it is important for employers to remember that the amount of notice an employee is entitled to is not affected by the amount the employer can afford. Employers should be cautious not to consider their own financial circumstances when estimating the reasonable notice entitlements of their employees. That said, employers are able to avoid significant court-ordered payments if employees accept severance packages that represent a reasonable and mutually beneficial compromise.

The Court clarified that the “character of employment” factor is concerned with the circumstances of the employee who was dismissed, not with the circumstances of the employer. The Court explained:

[…] An employer’s financial circumstances may well be the reason for terminating a contract of employment – the event that gives rise to the employee’s right to reasonable notice. But an employer’s financial circumstances are not relevant to the determination of reasonable notice in a particular case: they justify neither a reduction in the notice period in bad times nor an increase when times are good. […]

It is important to emphasize, then, that an employer’s poor economic circumstances do not justify a reduction of the notice period to which an employee is otherwise entitled having regard to the Bardal factors. […]

While employer’s have argued economic downturns as justification for termination, Courts have historically disregarded this argument and, in fact, in some cases given more reasonable notice when employers have taken this position.

This new case brings more certainty to this area of law. Before this case, there are, that I know of, only two cases in Canada in which the Court has considered this position by an employer and given some credit for it.

They are:

Gristey v. Emke Schaab Climatecare Inc. (Ontario) - The Court discounted the reasonable notice period by one-third to reflect the economic condition at the time and the employer’s precarious financial circumstances at the time; and

Lederhouse v. Vermilion Energy Inc. (Alberta) – The Court gave some credit to the employer when the termination took place before the depression in the oil and gas industry in Alberta (but noted that, if the termination had taken place during the recession, no credit would have been given).

So, while there was some, limited authority in Canada for employers to try to reduce pay in lieu of notice due to economic conditions, the Court of Appeal has now confirmed this is no longer accepted in Ontario.

As usual, the best strategy for employers is to ensure there is a written employment in effect, at the outset of the employment, containing properly-constructed provisions limiting pay in lieu of notice on termination.

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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MY ESTATE PLAN AND WILL - WHAT HAPPENS IF I MARRY (OR DIVORCE)? HERE ARE THE BASICS YOU NEED TO KNOW

Everybody should have an estate plan – namely, a Will and powers of attorney, at least.

What happens to your existing plan if you marry or separate/divorce?

If you marry, you will (perhaps unwittingly) revoke your Will automatically in Ontario, unless your existing Will specifically says that you made it “in contemplation of marriage”. Therefore, if you marry (and, ideally, before you marry), you should review your estate plan and make any changes that are necessary because of your marriage, especially if you plan to have children, for example.

If you separate from your married spouse, it does not automatically revoke your Will. Spouses are considered “separated” under the Ontario Family Law Act when they live separate and apart with no reasonable prospect that they will resume cohabitation. Separated spouses may share common accommodation as long as they live independent lives.

A separation will not impact your Will. If you are separated when you die, your spouse may still benefit from your Will, unless it is changed after you separate. Your surviving spouse will maintain his or her entitlement under your Will and other estate planning
after a separation, unless you make changes to your estate plan.

Therefore, if you separate (and if your separated spouse is your named beneficiary in your Will), you will need to promptly review your estate plan on or before you separate, or you may experience something you did not plan if you unexpectedly die. 

                   
If you have no Will when you separate, your separated spouse will likely fall within the definition of “spouse” legally and be entitled to share in your estate based on Ontario’s laws for intestacy (the Succession Law Reform Act) – another reason you should review your estate plan as of your separation. In Ontario, your surviving, married spouse will be entitled to your entire estate absolutely if you have no children. If you and your separated spouse do have children, your surviving spouse is entitled to a preferential share ($200,000) of your estate (off the top) and an equal portion of
the balance of your estate.

Not only should you review your estate plan on separation, but you should also enter a separation agreement as soon as possible, including addressing what, if any, rights each spouse is to have on the death of the other.

A  “divorce” legally ends the marriage and permits former married spouses to remarry (unlike a “separation”). Many married spouses resolved their relationship breakdown issues by negotiating a separation agreement, rather than a Family Court proceeding. However, you must ask the Court to grant a divorce order – only the Court can do so.

A divorce does not automatically revoke your Will. Rather, a divorce will only automatically revoke the parts of your Will that address your former spouse. All other provisions in your Will or other estate planning that do not relate to your former spouse will remain the same and in effect after your divorce. Your Will will be treated legally as though your former spouse died before you.

Effectively, this law is meant to invalidate any gifts made by you to your former (divorced) spouse, just in case you did not properly update your estate plan after you separated and divorced. Any specific gifts you made to your spouse will instead be directed to the residue of your estate. If your former spouse is entitled to the residue of your estate (the assets left over after the debts are paid and other specific gifts distributed), that benefit will alternatively be directed to the alternate beneficiary. If no alternate is named, then intestacy will result and your estate assets will be distributed according to the Succession Law Reform Act of Ontario.

In addition, if you named your (divorced) spouse as your estate trustee in your Will, a divorce will automatically revoke the appointment – more protection for you. Instead, the alternate will be appointed and, if no alternate is named, intestacy will occur for your estate. However, if no alternate is named in your Will, the rules of intestacy will govern. Your estate will be treated as though there was no will. Generally, a next-of-kin will need to apply to the Court to be appointed estate trustee.

Therefore, it is very important that you review your estate plan, particularly your Will and powers of attorney, if:

a)         you plan to marry;

b)         you separate; and/or

c)         you divorce.

 
There are other matters you should be considering, too, as part of your overall plan on separation or divorce. These relate to your other assets that may not be addressed by your Will (or not addressed properly), such as RRSP and pension designations, life insurance beneficiary designations and other assets for which you can designate a beneficiary, for example.

Therefore, when you marry, separate or divorce, you should review:

1)  your beneficiary designations, such as RRSPs, pensions, RRIFs, TFSAs and insurance policies;

2)  your jointly-held property, unless you own it as “tenants-in-common”, to ensure that your separated or divorced spouse does not take that property automatically by operation of law on your death; and

3)   your guardianship provisions in your estate plan, so you address your intention for the care of your child(ren) if you die, particularly if both you and your separated/divorced spouse are no longer living.

 
This WARDSPC 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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LIVING COMMON LAW? A FEW TIPS YOU SHOULD CONSIDER. SURPRISE!

If you are living common law, or hoping to do so, here are a few tips you should consider in terms of your relationship and what happens if it breaks down:

  1. Generally, you will be considered to be common law if you and your partner reside together for three years or more, or if you both have a child together.
  2. If you have a child together, but your relationship breaks down afterwards, the same rules apply to you for child support as they do for married spouses, including paying Table child support and contributing to the child’s special and extraordinary expenses (including post-secondary education), if you are not the primary care parent (subject to a few exceptions).
  3. The same thing applies for spousal support between common law spouses – you are treated legally as if you were had been married, more or less, for spousal support purposes. Generally, the legal obligation to support your common law partner will arise if you have lived together continuously for three years or more, or are in a relationship of “some permanence” and have a child together.
  4. Only married couples share the value of their property when their relationship breaks down. This is done by a fairly complicated formula, known as equalizing each spouse’s “net family property”. Effectively, the spouses split-the-difference between the net worth each accumulated during the marriage, subject to certain exclusions. However, for two people who live together at common law, but who do not actually marry, the law is different. When two people live together in a common law relationship, their property routinely is co-mingled and inter-mixed. If they separate, disagreements often arise about what each person will take from the relationship.  For example, if one partner has contributed time or work that helps the other buy or maintain property, such as a home, this may give rise to a claim for the non-owner spouse. Generally, common law spouses have to make more complicated legal claims against their separated partner, if they feel there has been unfairness arise from the relationship and its breakdown, such as family joint venture, constructive trust and unjust enrichment claims. In any event, property division and settlement for common law spouses is very different than for married spouses and, generally, more complicated to address legally quite often.
  5. Unlike married spouses, common law spouses do not have an inalienable, statutory and equal right to stay in the family home following a relationship breakdown, if that spouse’s name is not legally reflected on the title of the property. What’s more, the titled spouse (who actually is registered as the owner) can sell or re-mortgage the property without the other’s written permission, subject to the Court intervening if requested by the non-titled party. This is another example of how common law spouses are treated differently in Ontario law than married spouses.
  6. Because of the greater uncertainty for common law spouses and the different law that will apply on relationship breakdown, a domestic contract, such as a cohabitation agreement, should be considered to at least minimize the uncertainty that can arise on separation and, at the same time, offer protection to a common law spouse during the relationship, particularly if that partner is contributing money, time or effort to the other’s asset(s), or otherwise providing family support while the other is advancing his or her professional goals. In short, if you are common law, you should have a domestic contract in place (ideally early in the relationship) to minimize your worry, uncertainty about the future and to ensure that you are properly compensated for your contribution to the relationship.

This WARDSPC 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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OVERTIME PAY - DO YOU HAVE A CLAIM? THREE MISTAKES COMMONLY MADE BY EMPLOYERS

Overtime pay can be challenging and confusing, especially when an employee is not paid based on an hourly wage.

Ontario’s Employment Standards Act, 2000, Part VIII (the “Act”), sets out when an employee is entitled to overtime pay and the rate that is payable to the employee.

Employers who do not follow the overtime rules can be exposed to significant liability claims by employees, particularly if the problem is wide-spread throughout the employer’s business.

Employers often (unknowingly) do not comply with Ontario’s overtime pay law.

Three of the most common mistakes that employers in Ontario make are:

1.   If the employee is paid a fixed salary amount, this also covers overtime – Incorrect. Generally, salaried employees are not required to punch the clock, but a fixed salary or flexible work arrangement do not eliminate overtime pay. Employers must still calculate and pay overtime for non-managerial employees who work enough hours to qualify for overtime pay under the Act. Employers must have a system to keep track of and monitor overtime hours for all employees eligible for overtime pay, including salaried and flexible arrangement employees;

2.   If a fixed-salary employee chooses or elects to work more than 44 hours weekly, that is the choice of the employee and the employer is not responsible for overtime – Incorrect: Generally, when overtime is reviewed, the employee’s average work week will be considered (over a reasonable period of time). If the employee ultimately works, on average, more than 44 hours weekly, overtime is likely payable at time and a half. If the employee is consistently working more than 44 hours weekly, overtime liability is likely accumulating for the employer in the background (in addition to the base salary that is payable to the employee); and

3.   Very few employees realize this and, as a result, very few raise the issue or make a claim – Incorrect: Employees are more knowledgeable and aware of their rights generally, including under the Act. Employers are required now to post information about rights for overtime in the workplace, pursuant to the Act. If the employee is terminated, qualified employment lawyers now ask more questions about potential overtime that was not paid to the employee prior to termination.  

Recent cases in Ontario clearly indicate that employers run the risk of paying significant damages to employees if overtime is not paid properly to employees.

A good example is Baroch v. Canada Cartage, an Ontario class action that has been certified by the Ontario Court. In this case, 7,800 employees (of this trucking/transportation business) claim that their employer systematically failed to properly pay overtime to employees over several years (when the employees worked more than the threshold set out by the Act.

The Baroch case also makes it very clear, based on the Court’s initial treatment of the case, that employers must:

1.   have a written overtime policy;

2.   give clear directions in the workplace for employees to know how to apply the overtime rules and the thresholds; and

3.   implement a good system internally to track working hours for employees in order to identify and properly calculate overtime pay and entitlement.

The employer in Baroch did not have these in place – this had a significant impact on the Court’s decision to allow the case against it to proceed. Had the employer done these things properly, it likely would not have needed to face what will be a very substantial damages payment to its employees, plus very significant legal expenses.

This WARDSPC 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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BREASTFEEDING AT WORK - SORRY, THAT'S A PERSONAL CHOICE, NOT A LEGAL ONE. THIS WILL CREATE SOME CONTROVERSY.

The New Case: Flatt v. Canada (Attorney General) (Federal Court of Appeal, 2015).

The Issue:

The employee was blessed with a new baby. She requested the employer to allow her to work from home (teleworking) on the basis that she wished to breastfeed her new baby. The employer said ‘no’. The employee then grieved, alleging discrimination against her on the grounds of sex and family status (because the employer refused her request and would not accommodate her).

The Decision:

Not discrimination. The employee’s request to telework to accommodate her plan to breastfeed was not granted. The Court determined that breastfeeding is a personal choice, not a legal one. Ultimately, the mother employee could not satisfy the Court on the points of law necessary to establish discrimination on this basis and, therefore, she did not succeed.

The Implication:

The case does not stand for the proposition that a mother cannot breastfeed a baby at or during work. Rather, it establishes that breastfeeding is a personal choice and, unless an employee can prove the required elements of discrimination based on sex or family status, employers can take this position with respect to breastfeeding.

Effectively, a mother employee will need to establish why her “choice” to breastfeed is truly necessary, not merely a personal choice by her. This may require, for example, medical or other evidence. The case does not close the door on discrimination-based claims based on breastfeeding in the workplace, but does make such future claims more challenging.  Accommodation in the workplace remains an important objective, but in this case not all accommodation is necessary.

While the Court lauded the mother’s choice to breastfeed, it is did not accept that it legally required accommodation by her employer. 

The case, undoubtedly, will create some controversy, beyond legal debate.

Also, this was decided at the federal level, not the Ontario level (such as, pursuant to Ontario’s Human Rights Code). This must be considered in terms of whether the same result would happen in Ontario. Likely that is the case, but possibly not. We’ll have to wait and see.

This WARDSPC 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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AN ILLEGAL RENOVATION BY THE FORMER OWNER - FINALLY, A VICTORY FOR HOMEOWNERS AGAINST THE INSURANCE CO. - UNSHROUDING THE MYSTERY OF THAT TITLE INSURANCE POLICY

You just bought a new house.

When you bought it, you likely purchased title insurance. Most do, these days.

Title insurance policies in Ontario are extensively used for home buying, but the law has not kept pace on these types of policies, what they mean, what they actually cover, and the like. There is a gap.

Title insurance remains somewhat of a mysterious insurance policy in Ontario, including for many lawyers. There simply have not been enough cases about the scope and true coverage of title insurance policies to understand them fully and properly. Of course, this presents risk to both new home buyers and the lawyers who represent them.

Enter the Ontario Court of Appeal recently. 

Title insurers typically narrowly interpret their policies when it comes to the scope of coverage available. Often the scope of coverage relates to “marketable title”. Generally, title insurers tend to limit their scope of coverage position to cases where the homeowner is forced by a government authority to remove or remedy a structural defect, pursuant to section 8 of the Ontario Building Code Act, which specifically addresses permitting requirements, as distinct from a sub-section 15(4) order against the homeowner, which addresses a building that is determined to be unsafe. Title insurers often take this position, but now they will not be able to do so.

The case: MacDonald v. Chicago Title Insurance Company of Canada (Ontario Court of Appeal, 2015).

The homeowner was issued an order by the municipality to remedy an unsafe building, created because a former owner of the property had illegally removed a supporting wall.

The homeowner’s title insurer denied the claim.

Eventually the case made its way to the Court of Appeal, who disagreed with the lower Court and ordered that the title insurance was liable for the cost to remedy the unsafe defect in the home. The homeowners were also awarded costs for their appeal and the lower Court process.   

Effectively, this means that if is illegal work done in your home by a former owner that did not comply with the building code at the time, your title insurer (assuming you purchased title insurance when you bought the property), should be covering the cost of a post-closing work order issued by the municipality.

Good to know.

This WARDSPC 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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WHAT IF I GET FIRED? AM I PROTECTED BY ONTARIO OR FEDERAL LAW? WHAT'S THE DIFFERENCE?

Most employers in Ontario are governed by Ontario employment law, including the Ontario Employment Standards Act, 2000 (the “Act”).

However, some employers are governed by the federal law of Canada for employment, being the Canada Labour Code. Typically banks, transportation and telecommunication companies, for example, are subject to the Canada Labour Code. Sometimes there is debate about whether the Act or the Canada Labour Code applies, but not usually. 

The common law (i.e., judge-made law, from cases) applies generally to both cases.

While there are similarities and overlaps between the two jurisdictions, there are also differences depending whether an employee is protected by the Ontario Act or the Canada Labour Code. The law is not the same, especially when there is a termination of employment.

Many employers and employees do not fully understand or appreciate this distinction.

Below is a basic summary of some of the key elements of the Canada Labour Code in terms of termination of employment – which applies to employees who are terminated from federally-related employers (for employment reasons).

Is Notice of Termination Required?

Yes. The Canada Labour Code requires employers to provide at least two weeks’ notice or pay in lieu of notice to employees with more than three months of employment, unless the employer has just cause. Severance pay is also required for employees with more than one year of service. Severance pay is calculated on the basis of two days’ pay per year of service, with a minimum of five days’ pay.

Common law notice also applies. Employees may be entitled to more reasonable notice or pay in lieu of notice than required by the Canada Labour Code (the statutory minimum amount). Generally, common law reasonable notice is calculated based on years of service, age, character or nature of employment and the availability of alternative employment.

Like in Ontario law, the employer and employee may agree, by written contract, to an express termination provision in advance, so long as it is not less than the statutory minimum requirements.

Layoffs:

Layoffs that are more than temporary may be termination of employment under the Canada Labour Code. Like in Ontario law, a layoff may be considered to be a termination of employment unless the employee’s employment agreement specifically allows for temporary layoffs.

The Canada Labour Code also requires an employer to provide notice to the government and a trade union that represents affected employees and post notices in the workplace if it intends to terminate 50 or more employees in a four-week period or less. Notice must be provided at least 16 weeks before the date on which the first employee’s employment will be terminated.

Employers may also be required to establish a joint planning committee which includes employee representatives. The purpose of the committee is either to eliminate the need for termination or minimize the impact of the termination on employees and assist those employees in obtaining other employment.

Employee Protection on Termination:

Generally, non-union employees are entitled to notice of termination and, in some cases, severance pay.

Non-union employees who are not managers and who have at least one year of employment are protected against unjust dismissal under the Canada Labour Code.

In addition, employees cannot be terminated based on any of the prohibited grounds of discrimination under the federal Human Rights Act.

There are also protected leaves under the Canada Labour Code, including pregnancy and parental leave.

This WARDSPC 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.

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HIRING EMPLOYEES AND VOLUNTEERING - THE NEW RULES FOR CRIMINAL BACKGROUND AND VULNERABLE SECTOR CHECKS

As of December 1, 2015, the new Police Record Checks Reform Act, 2015, (the “Act”) is passed as law in Ontario.

This will affect how employers, for example, conduct criminal background checks for new and existing employees and the information that will be available for these checks.

The Act brings into law fairly sweeping and comprehensive standards across Ontario dictating the type of information that can be disclosed by police in response to record check requests.

The goal of the Act is to remove barriers to employment, suitability to hold a license or office, application to an educational program and participation in volunteer activities.

The underlying policy motive of the Act is to prevent inappropriate disclosure of: (a) non-conviction and non-criminal records, such as information obtained from street checks or “carding”; and (b) mental health information.

The Act imposes three new categories of record checks:

  • Criminal record checks;
  • Criminal record and judicial matters checks; and
  • Vulnerable sector checks.

For each of these, the Act both limits and standardizes the information that may be released by police agencies.

Generally, employers historically rely on criminal record checks in their screening of new, potential employees. Under the Act (section 9), the disclosure of “non-conviction information” is effectively prohibited (subject to a few exceptions) for criminal record checks, while “non-conviction information” is defined as including criminal offences for which an absolute or conditional discharge has been granted, criminal offences for which there are outstanding charges or warrants (such as, for example, outstanding charges for which no conviction has been entered), court orders made against individuals, and criminal offences that result in a finding of “not criminally responsible” due to mental disorder, for example.

Since vulnerable sector checks are historically done where the individual will be in a position of trust or authority over vulnerable persons, including children, the Act permits more extensive disclosure in response to this category of records checks. For example,  each of the kinds of “non-conviction information” identified above could be disclosed by a vulnerable sector check, subject to certain limitations (time period, etc.).

The Act also permits the “exceptional disclosure” of non-conviction information with respect to a vulnerable sector check if certain conditions are satisfied.

For all of these categories, convictions for which a pardon has been granted will generally not be disclosed, although there is an exception where disclosure is authorized under the Criminal Records Act (Canada).

Arguably the most important change brought about by the Act is, pursuant to section 12, that it requires that the individual at issue is entitled to initially receive and have an opportunity to review the information and, after doing so, consent to the disclosure. If there is potentially inappropriate non-conviction information included in a record, sub-section 10(4) of the Act allows the individual to request a reconsideration of the disclosure. Therefore, employers will only likely be provided the results of the checks they request disclosed to them by authorities, if the employee at issue has consented to the disclosure.

Accordingly, employers should know and understand the Act, because it will impact what back ground (criminal) information can be obtained about existing or potential employees in the hiring and screening process.

The Act is not yet formally in force in Ontario, but will soon be.

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.

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EMPLOYERS - OFFERS TO NEW HIRES - MAKE SURE YOU GET IT RIGHT - THE COURT WILL NOT HELP YOU AFTERWARDS

The employer negotiated with the employee for a new job. Key terms of the position were discussed in the interview, such as position, start date, salary amount, vacation time and pay, probationary period and benefits, for example.

The employee was leaving an existing job to take this new position.

The employer presented a letter of employment to the employee after the interview. The same key terms were identified in the offer letter, but the employer made no mention of the employee having to sign a full employment agreement for the new position. There was brief mention of this in the e-mail by the employer to the employee delivering the initial offer letter.

The employee resigned from his existing job after receiving the offer letter by the employer.

Subsequently, the employer presented a fulsome employment agreement to the employee, which contained a clause limiting the notice of termination to the employee to only the minimum, statutory notice required by the Employment Standard Act, 2000 (i.e., contracting out of the common law reasonable notice obligation).

The employee signed the fulsome agreement, feeling he had no choice but to do so.

The employer terminated the employee within the year, relying on the fulsome employment agreement. The employee brought an action for wrongful dismissal, seeking damages based on common law reasonable notice, rather than the minimum amount set out by the employment agreement.

The Court decided that an employment contract was formed when the employer received the letter setting out the key terms of employment. The Court did not accept the employer’s argument that reference to "the contracts" in the email attaching the offer letter was a clear indication that the employment relationship would be governed by a comprehensive agreement. Therefore, it was not made clear that the employee’s employment was conditional on him signing the employer’s employment agreement and, because no new or additional consideration was given by the employer when the employee subsequently signed the employment agreement, the Court held that the agreement was unenforceable and did not limit the employee’s termination entitlements.

So, the common law governed the notice period and the Court awarded damages to the employee based on four months of compensation in addition to payment of his legal fees.

WHAT DOES THIS MEAN?

Employers are, of course, entitled to discuss key terms of employment with potential new employees, but care should be taken to ensure that an offer is not made to the employee that is sufficiently detailed to allow a Court to find that an enforceable contract was formed.

Offer and acceptance is the key – if an offer is made, and is accepted by the employee, it may form the contract, even if all of the terms requested by the employer are not identified.

Employers should ensure that any prospective hire is informed clearly that the offer of employment is conditional upon the hire signing a comprehensive employment agreement setting out the terms and conditions that will govern the employment relationship. This condition should be consistently confirmed in any subsequent communications with the hire and the only written offer that should be provided is the fulsome offer that the employer wants the employee to sign.

The case: Buaron v. AcuityAds Inc., 2015 ONSC 5774

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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BEING ADDED TO A JOINT BANK ACCOUNT FOR AN ELDERLY PARENT OR FRIEND - BE CAREFUL!

Often an elderly person, or person who is in need of some financial management assistance, adds an adult child or family member to a pre-existing bank account, making it a joint bank account.

Commonly there is no paperwork made when this is done, such as the elderly person indicating, in writing, whether:

-     the intention is only for assistance in managing the accounts funds, such as paying bills, etc.

-     compensation is to be received by the added person

-     if the elderly person dies, if the funds remaining in the account are to be a gift to the added person and pass to that person by joint survivorship

In fact, often there is nothing in writing verifying the arrangement, which regularly creates conflict and, sometimes, litigation between the person who is added to the account and the elderly person’s family members, usually after the elderly person passes.

If you are added to a pre-existing joint bank account, for example, you could be assuming a fiduciary duty to the person who adds you, which brings with it duties at law that expose you to claims by others.

What is a fiduciary? Generally, the legal definition is:

a)   a person who has scope for the exercise of some discretion or power;

b)   a person who can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests; and

c)   the other person (the beneficiary) is vulnerable to or at the mercy of the fiduciary holding the discretion or power.

The person added to the account can face allegations in a lawsuit that:

(i)      the person added, who is often an adult child, had or acted in a fiduciary relationship to the elderly parent (in the management and operation of the joint account);

(ii)     the person breached that fiduciary duty by, for example, making payments to himself or herself, or making payments that had some benefit to that person in some way;

(iii)    the added person should be held liable to repay the amounts for breach of fiduciary duty and breach of trust;

(iv)    the added person should be required to provide a full accounting for the management and operation of the joint account, repay money paid to himself or herself, damages for breach of trust and fiduciary duty and, sometimes, punitive damages are claimed, too.

There is no definitive law in Ontario about whether, for example, an adult child added to a joint bank account is automatically a fiduciary and trustee de son tort and, therefore, exposed to liability for breaching those duties, but there is authority in Ontario for this and, consequently, this risk.

What remains unclear in Ontario is whether any person who is added to a pre-existing joint bank account by another (even just to assist with financial management), but who does not contribute to the account, will be automatically determined to be a fiduciary and, therefore, held to that standard, or whether this fiduciary duty will simply apply to everyone who holds (bank) accounts jointly.

As a precaution, if you will be added to a joint bank account (by a parent, for example), there should be, in writing, a statement by the person adding you about:

-     the reason and intention for you being added

-     whether, on death, the account balance is to be a gift to you

-     whether you are entitled to compensation for your assistance

A new case in Ontario illustrates this risk: MacKay Estate v. MacKay, 2015 ONSC 7429

An ounce of prevention is worth a pound of cure when it comes to joint bank accounts.

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.

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USING YOUR WORK COMPUTER/DEVICE FOR PERSONAL EMAILS AND TEXTS - ARE THEY PRIVATE FROM MY BOSS?

You use a mobile device paid for your employer. You use your employer’s desk top computer all day long. You may even use a lap top supplied by your employer.

You likely send and receive personal emails on all of these – most of us commonly do. You might also even save personal documents or data on any of these, such as your personal financial information or family-related information.

In addition, many employers now have strongly-worded workplace policies prohibiting personal use of their hardware, technology, systems and domain name.

The question: Are your personal emails on your work computer/device actually private?

Historically the law in Ontario has been that if you use your work technology for personal matters, it is not private – your employer has the right to access and review it if it is saved on or forms part of the technology, such as your personal emails on the employer’s exchange server or outlook program.

The law has evolved. For example, with respect to your personal emails, an individual’s workplace computer is protected against unreasonable search and seizure by police – R. Cole, 2012 SCC 53. But that important case did not address what happens between employees and employers, for example, but rather only to police investigations of employees.

A new Saskatchewan arbitration case now suggests that even your employer cannot access and rely on your personal emails without having reasonable grounds to search your personal data.

Often this arises in the context of a termination. For example, you have sent or received a personal email or text that your employer determines violates its workplace policies, or is otherwise objectionable. You are terminated, without cause. In support of its position, when you allege wrongful termination, the employer produces and relies on your personal emails, texts or data accessible from the employer’s own system(s) or hardware.

In this Saskatchewan case, SGEU v. Unifor, Local 481, 2015, 255 LAC (4th) 353, the employer terminated the employee for allegedly being a member of a notorious motorcycle gang, based on emails the employer searched for and obtained through its own domain name. The employee grieved the termination and alleged it was wrongful and there was no cause for it. The employer, to support its position for cause, sought to admit the emails as evidence supporting its decision to terminate the employee at the arbitration of the grievance.  The employee objected on the basis that the employee had a reasonable expectation of privacy in the emails, relying heavily on the Cole decision. 

The employer claimed the employee had no expectation of privacy in the emails because the employer’s workplace IT policy made it clear that all messages sent using the employer’s system were property of the employer and that employees should expect that no communications were confidential or private.  Furthermore, the employer’s IT policy indicated that all IT resources were for work purposes only. Incidental use was neither expressly permitted nor expressly prohibited

The Arbitrator disagreed with the employer. The emails were not admitted into evidence. He agreed with the employer that its workplace policy clearly indicated that employees should not expect that anything on the system would be confidential or private. He also found that the IT policy went a long way towards reducing any expectation of privacy employees may have. 

However, the Arbitrator ultimately found that, because of the pervasiveness and ubiquitousness of email in society, it is impossible for some incidental, personal use of work email not to occur.  When finding that employees maintain a reasonable expectation of privacy in those personal emails on their employers system, the Arbitrator cited with approval comments in Cole that neither workplace policies nor ownership of the system are determinative of an employee’s expectation of privacy.

Because employees have a reasonable expectation of privacy in emails on an employer’s system, employers may only search those emails if it is reasonable.  In order for the search to be reasonable, it must be reasonable in the circumstances to request a search, the search must be conducted in a reasonable manner, and there must not have been reasonable alternatives available to the employer.

In this case, the Arbitrator found that the employer had cause to conduct an investigation.  However, the search was unreasonable because the employer did not consider less intrusive alternatives first, such as requesting additional information from third parties (like the police and investigating authorities, for example) or contacting other employees who may have relevant information.  If these less intrusive alternatives proved unsatisfactory, the Arbitrator acknowledged that the employer may have had grounds for searching the employee’s emails.

What Does This Mean?

Despite this is an arbitral, out-of-province decision, it is likely good law and will likely be followed or adopted in Ontario. Ontario Courts often apply arbitral decisions when considering whether an employer had cause to terminate an employee, even if it is a union-based matter.

Any employer who wants to rely on personal emails found on the employer’s system to justify its decision to terminate an employee for cause may have to first establish that its search of the employee’s personal emails was reasonable. 

While a strongly-worded IT policy may reduce an employee’s expectation of privacy in emails sent using the employer’s email system, such a policy is unlikely to eliminate the expectation of privacy entirely.

In the end? Employees have a reasonable expectation of privacy for their personal emails sent and received using their employer’s hardware and systems, but that privacy is not absolute and by no means should that expectation be relied on to insulate any employee from being terminated for cause in appropriate circumstances.  

This WARDSPC 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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I'VE BEEN TERMINATED - I STILL GET MY BONUS THIS YEAR, RIGHT? CAN THEY DO THIS TO ME?

In Ontario, 2015 has introduced new law about bonuses when an employee is terminated, specifically:

a)   if the employee is entitled to be paid bonus or incentive payments accrued as of the date of termination; and

b)   if the employee is entitled to loss of bonus during the reasonable notice period.

Typically, employers insert language into employment agreements to try to avoid paying bonuses (accrued and future) to employees that are terminated. Generally this language requires ‘active employment’ when the bonus decision is made in order to be eligible. Employers have in the past successfully avoided paying bonus compensation to terminated employees on this basis.

2015 ushered in change to this area.

Now, as a result of the cases this year, language contained in an employment agreement requiring the employee to be actively employed at the time a bonus payment is paid in order to be eligible for that payment can still be enforceable, if drafted properly, but the new (since 2014) general duty of good faith contractual performance can override that and help an employee defeat an otherwise enforceable clause in an employment agreement for no bonus entitlement on termination.

The important cases this year about bonus treatment on a termination of employment:

Lin v. OTPPB (2015 Ontario Superior Court No. 3494)

Paquette v. TerraGo Networks Inc. (2015 Ontario Superior Court No. 4189)

Kielb v. National Money Mart Company (2015 Ontario Superior Court No. 3790)

Styles v. Alberta Investment Management Corporation (2015 Alberta Queen’s Bench No. 621)

Another important case that is now being incorporated into the bonus issue is Bhasin v. Hrynew (2014 Supreme Court of Canada No. 71). In this case, the highest Court determined that parties to a contract must perform their contractual duties honestly, reasonably, in good faith and not capriciously or arbitrarily. This has now been incorporated into employment law, including in the context of whether a terminated employee is to receive compensation for loss of bonus, either as of the date of termination (accrued bonus) or for the reasonable notice period.

For example, in the Styles case, the employee was terminated without cause and with no explanation before he received payments he had accrued under a long-term incentive plan.

The Alberta Court held the exclusion clause in the employment agreement to be ambiguous – it was not enforced against the employee. The Court also held that although the employer did have the contractual right to terminate at any time without cause, the employer’s decision to exercise that right and its contemporaneous refusal to pay any of the long-term incentive grants constituted an unfair and unreasonable exercise of its discretionary powers.

The Court said:

“When an employment contract includes a condition for the receipt by an employee of a benefit under the contract and the employer has the discretion, pursuant to the terms of the contract, to frustrate the satisfaction of that condition, it becomes even more important for that discretion to be exercised fairly, reasonably and not arbitrarily.”

Where does that leave us?

Employers need to be very careful in drafting their employment agreements, if they wish to limit entitlement to bonus compensation on termination. If they do, and those clauses are successfully drafted and survive judicial scrutiny, they must be still be exercised in good faith, or they will be of no effect and the bonus will be payable (plus costs, presumably).

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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MAKING COMPLAINTS ABOUT SAFETY AND YOUR BASIC RIGHTS IN THE WORKPLACE - THE LAW DOES HELP YOU

In Ontario, employees are given protection for making a complaint about safety issues and conditions in the workplace. For example, the Occupational Health and Safety Act of Ontario contains a ‘reprisal’ section, effectively meaning that an employee cannot be terminated for making a complaint about a safety issue in the workplace. Similarly, for example, the Employment Standards Act, 2000 of Ontario has a ‘reprisal’ provision protecting employees from termination if they complain that their rights under that employment statute are not being followed by the employer.

A recent case in point: Leverton v. Roberts Onsite Inc. (2015 CanLII 80170 – Ont. Small Claims)

An employee, who worked for an electrical contractor that did work in schools, complained to the MOL that electrical panels in certain schools had been “wired incorrectly”.  He saw it as a safety concern.  An MOL inspector investigated and found no safety concerns.

The employee was eventually fired, and he sued in the Small Claims Court for wrongful dismissal.  The employer counterclaimed against him for allegedly filing a “false” safety complaint with the Ministry of Labour, costing the employer money to deal with the fallout from the MOL investigation.

In dismissing the employer’s counterclaim, the deputy judge stated:

“Moreover, I take judicial notice of the fact that the Ministry of Labour Health and Safety Contact Centre is set up by the province to permit reporting of, among other things, unsafe working conditions. It would be the worst kind of public policy to encourage people to report unsafe working conditions and then hold them liable in tort if it is determined that the conditions do not fall below the safety standards applied by the Ministry. Reporting to a government safety authority what is honestly believed by the reporter to be unsafe working conditions should enjoy a qualified immunity from tort liability except in cases of total fabrication or perhaps completely unreasonable opinions about safety. No such immunity is required in this case to defend against the Defendant’s Claim however, because all the grounds of liability pleaded by the Defendant require that the report be false.”

“Further, the employer had not proven any damages.  The employer’s claim for damages for hours spent by its employees dealing with the MOL after the complaint was rejected, with the deputy judge calling one piece of the employer’s evidence regarding its damages, “exaggerated, fanciful, if not downright false”.

In this case, the employer tactically made the error of counter suing the employee for making a complaint, even though the MOL determined there was no safety issue.

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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TACKLING WORKPLACE HARASSMENT - THE NEW RULES ARE COMING - EMPLOYERS TAKE NOTE

The rules are changing for workplace violence and harassment. The Ontario government is re-prioritizing these issues, including imposing new duties and obligations on employers in Ontario if a workplace complaint is made concerning harassment or violence. These new changes will augment Bill 168 of the Occupational Health and Safety Act, the existing law in Ontario, which has been questioned and, often, criticized, for not requiring enough to address these issues in the workplace.

Carol S. VandenHoek and Evan Campbell of Miller Thomson LLP recently and helpfully summarized these pending changes (below), reproduced from Lexology.com:

“Employers in Ontario need to be aware of the continued evolution and expansion of their obligations relating to harassment in the workplace. The issues of sexual harassment and violence are high on the Ontario Government’s agenda. In March 2015, the Ontario Government released its report entitled, “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment”.  In October 2015, the Government introduced Bill 132 as a legislative response to its report.

Bill 132, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015, proposes to expand employer obligations regarding workplace sexual harassment. Bill 132 expands on the changes implemented in Bill 168 to the Occupational Health and Safety Act (“OHSA”). As readers will recall, Bill 168 came into force five years ago and required employers to draft workplace violence and harassment policies/procedures, provide training to employees about the harassment policies and investigate complaints, among other things. 

Bill 132 proposes further changes to OHSA which expand an employer’s obligation regarding sexual harassment in the workplace. These changes include:

1) Definition of Workplace Sexual Harassment

The definition of “workplace harassment” in OHSA would be revised to include a definition of “workplace sexual harassment”, which would be defined as:

  • 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 person knows or ought reasonably know that the comment or conduct is 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 know that the solicitation or advance is unwelcome.

2) Expansion of Workplace Harassment Policies/Programs

Bill 132 expands the obligations outlined in Bill 168 to require a workplace harassment program that specifies:

  • procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser;
  • how complaints will be investigated and dealt with;
  • that information obtained about an incident or complaint of workplace harassment will not be disclosed unless the disclosure is necessary for the investigation or corrective action; and,
  • how a victim and alleged harasser will be informed of the results of the investigation.

3) New Duties Added to OHSA

Bill 132 imposes statutory duties on employers which differentiates the proposed legislation from Bill 168. These duties under OHSA would require that: an investigation is conducted into complaints of sexual harassment; the victim and alleged harasser be informed in writing of the results of the investigation; and, that the workplace harassment program be revised annually.

Also of note, Bill 132 would provide additional powers to the Ministry of Labour (“MOL”). Specifically, MOL inspectors would be able to order an employer to investigate a workplace harassment incident and to hire an impartial party to investigate the incident at the employer’s sole expense. This authority provides significant discretion to an MOL inspector and would result in the employer losing control over the investigation process.

Bill 132 has only passed first reading and as such, is in the early stages of the legislative process. The current proposed date for the changes coming into force is July 1, 2016. We will continue to update you on the progress of this legislation in the coming months.”

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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X-MAS TREE SAFETY AND TIPS - FROM THE GRINCHWARDS

Both real and fake Christmas trees can conflagrate in mere seconds, filling the room with smoke and fire that can spread relentlessly through your entire home.

Sorry, we don’t mean to be The Grinch, but many festive families do not give enough attention to these incendiary homages.

The record is rife with terrible stories about avoidable injury and damage. Even your alarms may not give enough advance warning to keep pace with the agility and speed of the flames.  

 This holiday season, consider taking these steps, if you do not already:

  • Look for a tree with vibrant green needles that are hard to pluck and don't break easily from its branches. The tree shouldn't be shedding its needles readily
  • Always place your tree away from heat sources like fireplaces, radiators, candles, heat vents or lights and keep the tree base filled with water to avoid a dry out
  • Double check your home alarms have fresh batteries and are working properly
  • Make sure all your indoor and outdoor Christmas lights are ESA approved (it should say on the box) and discard/recycle any damaged lights or bulbs
  • Any lights you use outdoors must be labeled suitable for exterior placement and be sure to plug into a ground-fault circuit interrupter protected receptacle
  • Keep all your holiday candles away from your Christmas tree, surrounding furniture and décor
  • Bedtime means lights off - don't forget to turn your Christmas tree light switch each night and, if you use an automated timer, double-check that it is working properly
  • When your tree begins to drop its needles profusely, it's time to say goodbye to your evergreen foliage until next year, even if your holidaying is not quite finished yet
  • If you buy a pre-cut tree, consider sawing off an inch or two from the stump of the tree so water can be easily absorbed

Happy holidays, from the GrinchWards!

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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MARRIAGE BREAKDOWN - WHAT WILL HAPPEN TO OUR HOME?

On marriage breakdown (not relationship breakdown), a key area of confusion and uncertainty for many separated spouses is what happens to the matrimonial home. Only married spouses can own or occupy a matrimonial home – common law spouses cannot do so (Family Law Act).

 

“Matrimonial home” is defined by section 18 of Ontario’s Family Law Act:

 

“Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.”

 

Practically, it is any property at the separation date that is ordinarily occupied by the spouses as their family residence.

 

Spouses can have more than one matrimonial home – it is a fact-specific issue. For example, the home in town and the cottage could both potentially qualify as matrimonial homes, if the facts support that finding.

 

Depending on the facts, matrimonial homes can be treated differently in terms of what must happen to them on marriage breakdown.

 

Often they form part of the formulaic approach to property distribution and resolution under the Family Law Act, a challenging formula to understand and master for most (including many lawyers). 

 

For many reasons, including emotional and financial, a spouse may not wish to leave, or refuse to list and sell, or wish to delay any disposition of a matrimonial home, often understandably.

 

Spouses can try to retain the matrimonial home, but if it jointly owned legally, Ontario law gives either spouse the right to seek a listing and sale of it. Often Judges are reluctant to order a listing and sale prior to a trial, but they will do so if the circumstances are appropriate.

 

If the home is jointly owned, both spouses have a statutory right to possess it both during marriage as well as after separation and neither can be forced to sell their half to the other. Spouses do not have a right of first refusal to purchase the matrimonial home from the other where it is jointly owned. In fact, in Ontario, the Partition Act gives the Court power to force the sale of a jointly owned matrimonial home, if the parties cannot come to a buy-out agreement, for example. Spouses are entitled to list the matrimonial home on the market in an effort to obtain the best market value, but a spouse will not be required generally to accept less than fair market value from the other spouse.

 

The Partition Act is only available in situations of joint ownership. Where the title to the matrimonial home is in the name of only one of the spouses, then the Partition Act does not apply. This does not mean that the other spouse has no claim against the matrimonial home. The non-titled spouse still has a claim to the equity from the property through the equalization process provided for under the Family Law Act. A spouse may also have equitable trust claims against the home, too. However, legal title matters. The non-titled spouse cannot force the titled spouse to sell the matrimonial home, or limit the ability of the titled spouse to keep it, sell it, refinance it or even make a gift of it, unless a Court order is made otherwise.

 

Buy-out decisions must be carefully planned and considered. Future projections on carrying expenses must be reviewed. A decision is often made about whether a spouse can reasonably afford the home, rather than have it sold, or sell the interest to the other spouse. Generally, the Court will focus mostly only on the real property value of the matrimonial home and the right of the other spouse to maximize their return from it. Uncommonly does the Court put emphasis on or stock in the importance and emotional value of the home to either spouse (or children), when it comes to addressing the property issues only.

 

If a spouse wishes to buy out the interest of the other in the matrimonial home, tactically, letting that be known can create unequal bargaining positions in the negotiations or litigation. The other spouse can, in effect, try to lever that desire to gain a tactical advantage – sometimes this happens.

 

Usually there are several options to consider on marriage breakdown, with multiple factors to review, before any temporary or permanent decisions are made about the matrimonial home. An early decision can impact the final outcome, of course.

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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SUING DEEP-POCKETED DEFENDANTS - LEVELLING THE PLAYING FIELD WITH A LITIGATION LOAN

Suing a deep-pocketed defendant can be problematic from a litigation funding angle. An emerging trend in other countries is funding by a third party to finance the litigation, if the litigation is meritorious. This 'level-the-playing-field', access-to-justice-premised emergence is finding its way into Ontario law. There are both proponents and those who are critical of this development, both from a legal philosophical and profiteering perspective.

Typically this type of funding is only an option for larger-scale cases with significant damages at play, rather than litigation with less prospect for significant recovery.

Lincoln Caylor of Bennett Jones LLP recently blogged about this litigation funding emergence in a helpful, concise way, which is appears below, as published by Lexology on Dec. 8, 2015:

Originally published in FraudTalk, ICC FraudNet.

"Your drinking water has been poisoned, your car is defective, or you have lost your life savings in an investment fraud. Neither you, nor the other victims have the money to pay for a lawsuit, but an investment company backs the suit, allowing you to mount a vigorous case. A win would not only net damages for you, but a return on investment for the company that banked the lawsuit. This is the brave new world of third-party litigation funding, or litigation finance, in which institutional investors offer financing in return for a contingency in the recovery. One of the most critical developments in civil and potentially commercial litigation, the practice has the potential to impact many types of cases, including international fraud, environmental and corporate cases worldwide.

Originating in Australia and the UK more than a decade ago, third party litigation funding agreements (LFA’s) are becoming commonplace in class actions in Canada, and have spread to the United States and Asia. However, while LFAs have yet to become as common in commercial litigation, a court ruling in Ontario earlier this year (Schenk v. Valeant Pharmaceuticals International Inc.,2015 ONSC 3215), could signal further expansion of the practice. Although the motion for approval of the LFA was ultimately denied, the court permitted the LFA to be amended in accordance with its decision. In the wake of the decision from Schenk, Canadian courts are bound to see more LFAs in commercial litigation. In a global world, other jurisdictions may not be far behind.

The deck is often stacked against plaintiffs who dare to take on companies with deep pockets. LFAs level the playing field, by providing access to the courts for parties who would not otherwise be able to litigate a case. Funders can also balance lopsided financial resources between parties and assist parties who would otherwise accept lower settlements, because they lack the financial resources to continue with the litigation.

Third-party funders do not fund meritless cases, or at least those that do will not be in business for long. Accordingly, access to funding will not clog the courts with meritless cases.

Meanwhile, as the debate continues, what are the big issues, responses by the courts and the future of LFAs?

Are LFAs a hindrance or do they actually facilitate the administration of justice?

Courts have aimed to strike a balance in governing the use of LFAs, between their potential to interfere with the administration of justice and their potential to unlock greater access to justice. On one hand, concerns arise when third-party funders are permitted to interfere with lawsuits in which they have no legitimate interest. Intermeddling in a dispute in which a third-party has no interest without justification or excuse is known in common law as maintenance. Profiting off such a dispute is known as champerty. The common law prohibitions against maintenance and champerty have historically deterred LFAs.

On the other hand, there isthe notion that LFAs facilitate access to justice, a concern that has grown increasingly prevalent in recent years. In the commercial litigation context, contingency retainers are less common than in class actions or personal injury litigation. As such, the risks and expenses associated with litigation fall primarily on the client. The often complex and document heavy nature of commercial litigation typically makes it very expensive and therefore a lack of access to adequate funding may create a barrier to justice.

Given that investments are designed to make a profit, when is that profit mercenary?

In Schenk, the primary basis on which the court refused to approve the LFA was that the third-party funder could potentially receive over 50% of the proceeds of the litigation. That threshold was adopted from Ontario's statutory cap on contingency fee agreements, which is set at 50%.In the court's view, an LFA in which the third-party could receive the majority of the proceeds did not provide access to justice. Rather, the LFA provided an attractive business opportunity to the third-party, who suffered no wrong. However, obviously funders find investing in litigation is good business when the payments are less than 50% or they would not invest.

Limiting the third-party funder's decision making power

Third-party funders may exercise influence over the litigation where the funder is permitted to terminate the LFA. Courts have refused to approve LFAs where the funder possessed the power to terminate the LFA without cause (see e.g. Metzler Investment GMBH v. GildanActivewear Inc., [2009] O.J. No. 3315 (Sup. Ct.)). However, where reasonable limits are placed on the funder's ability to influence the litigation through termination of the LFA, courts will not interfere. In Schenk, the funder possessed the ability to terminate the LFA in the event that it reasonably ceased to be satisfied with the merits of the claim. This was viewed as a reasonable limit on the power to terminate the LFA.

Courts may require the disclosure of an LFA

An LFA itself is not confidential, and its terms may be required to be disclosed. In the recent International Centre for Settlement of Investment Disputes tribunal decision from MuhammetÇap&SehilInşaatEndustriveTicaret Ltd. Sti. v. Turkmenistan, the claimants were ordered to disclose the identity of the third-party funder and the terms of the LFA. Grounds cited by the tribunal for requiring the disclosure included the potential that a conflict of interest existed between the arbitrators and the funder as well as the opposing party's intention to apply for security for costs.Similarly, Canadian courts have required LFAs to be disclosed to opposing parties (see e.g. Fehr v. Sun Life Assurance Co. of Canada, 2012 ONSC 2715).

LFAs in the United Kingdom

With its lengthier history of permitting LFAs, the United Kingdom has a more progressive approach in place. In particular, the U.K. has developed the Association of Litigation Funders of England and Wales, which is an independent body whose purpose is to regulate litigation funding. A Code of Conduct for Litigation Funders was also put into place, which mirrors some of the concerns discussed above that were addressed by Canadian courts. For example, litigation funders may not try to take control of the litigation, may not terminate funding absent a material adverse development, and must have the financial resources to pay for the litigation.

In Schenk, the court noted that the third-party funder was a member of the Association of Litigation Funders of England and Wales and that it was therefore expected to adhere to the Code of Conduct.

The future of LFAs in Canada and beyond

In the absence of legislation or a Code of Conduct, LFAs are still governed by the courts in Canada. As such, there are no clear guidelines and no guarantees that any particular LFA will hold up in court. However, even where LFAs are not approved, Canadian courts have provided guidance on how to amend the LFAs and permitted the parties to renegotiate the LFAs accordingly.

Although the court in Schenk opened the door for LFAs in the commercial litigation context, it may be some time to feel the impact of the decision. This is because parties to commercial litigation often have their own financial resources with which to finance the litigation. However, where individuals are involved in commercial disputes, where sophisticated parties lack adequate financial resources, or where sophisticated parties wish to hedge the economic risks associated with litigation, LFAs will continue to be a valuable tool."

Funding your litigation may be possible with the help of third party assistance, but careful consideration should be given by you and your counsel about the ins-and-outs of this type of arrangement.

 

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FAILING TO CONDUCT A GOOD WORKPLACE INVESTIGATION BEFORE TERMINATING - JUST CAUSE NO MORE

The case: Fredricks v. The BTS Network Inc. (HRTO 2015, No. 1597).

Basic Facts:

The employee was a bus driver, who made a complaint alleging discrimination in the workplace related to harassment by another employee (involving racism). He was terminated no long after. The employee made a complaint to the Human Rights Tribunal, alleging reprisal for his complaint. The employer defended, alleging the employee was terminated because he continued to work part-time for another employer after he was allegedly told not to – the employee disputed this. An important issue in the case was the manner in which the employer handled the workplace investigation of the employee initially, before terminating the employee.

Outcome:

The employee was successful. The HRTO determined that the employer did not conduct a proper workplace investigation. At the hearing, the employer testified that it took the employee’s complaint letter very seriously.  The Adjudicator disagreed.  She noted that the employer’s “investigation” (the Adjudicator’s quotation marks) consisted only of obtaining a written response from the co-worker identified by the employee as the source of the racist behaviour. It did not speak to the employee about his concerns to understand them better, nor did it speak to the co-worker. Rather the employer simply sent a letter to the employee which contained the co-worker’s responses, augmented by the employer’s own responses. The employer’s letter to the employee was criticized by the Adjudicator.

The Adjudicator also noted that the employer’s attitude to the fact that the employee had made an allegation of discrimination was “made manifest by the way they reacted to his complaint”.  She added that “having asked him to put his concerns in writing, they appeared to be deeply offended by what they read”. She found the employer’s outrage was misplaced given the “short shrift” that the employer gave to the employee’s complaint.

Tips About Workplace Investigations:

  1. An important message of this case is that workplace investigations should not be done in a perfunctory fashion.  The investigator (whether internal or not) should not only review the written complaint, but meet with the parties, and any necessary witnesses, in an effort to obtain additional information. This information then needs to be considered in a meaningful way before the investigator makes his or her decision.
  2. Beware of the presence of bias, particularly when it is an internal investigator who conducts the investigation.  Here, the facts highlighted in the decision suggest that the employer had made up its mind vis-à-vis the allegations at the outset, and it went through the exercise of obtaining a response only in a pro forma fashion.
  3. Finally, as this case illustrates, an inadequate investigation can be successfully used by parties who wish to argue other aspects of a human rights case, in this instance, where the employee maintained that he was fired as a reprisal.

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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POLICE RECORDS CHECKS - EMPLOYMENT AND VOLUNTEERS - THE LAW IS CHANGING - KEEP UP

The Ontario government enacted the Police Record Checks Reform Act on Dec. 1, 2015.

This will change the law about obtaining police records checks. This will apply to, for example, employers who request these on hires and organizations who require police records checks for volunteers.

The legislation is not yet in force, but will be in the future near future.

Effectively, no longer will these checks disclose mental health records or records from police "carding" checks and other non-conviction records, except in special circumstances.

A good summary of this new changes is posted by Maddie Alexrod of Borden Ladner Gervais LLP here.

If you request police record checks for employment, volunteerism or otherwise, you should review this update and make adjustments to your system for requesting these checks.

Note that A person or organization that willfully contravenes certain provisions of the Act is guilty of an offence, and is liable to a fine of not more than $5,000. A prosecution cannot be commenced unless the Minister of Community Safety and Correctional Services consents.

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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BY JAN 1 - COMPLY WITH YOUR OBLIGATIONS UNDER THE NEW AODA RULES - THEY WILL BE ENFORCED

Employers - Remember there are upcoming deadlines for the new requirements imposed on your business and workplace under the Ontarians with Disabilities Act ("AODA"). These will apply to you as of Jan. 1, 2016. Your obligations depends on the size of your business (i.e., if you fewer than 50 employees, typically). The AODA and Human Rights Code training can be obtained from the Human Rights Tribunal by online module or by DVD. It is approximately 20 minutes to complete. The Ministry is posed to spot audit for compliance as of when the deadline arrives, so plan ahead. We have blogged about these new obligations (wardlegal.ca).

Here is an excellent summary of the incoming changes by Stephanie Young of Borden Ladner Gervais LLP on these looming obligations, reproduced from Lexology.com on Nov. 30, 2016. It is a helpful summary of the obligations you may have as of Jan. 1:

"The next phase of Accessibility for Ontarians with Disabilities Act (the “AODA”) compliance comes into effect on January 1, 2016. Private and not-for-profit organizations, and small and large public organizations will have to comply requirements under the Integrated Accessibility Standards Regulation (the “Regulation”) beginning in the New Year as follows:

  1. Small organizations (with fewer than 50 employees in Ontario) must ensure training is provided on the requirements of the standards set out in the Regulation and the Human Rights Code as it pertains to persons with disabilities. Training must be provided to all employees, volunteers, all persons who participate in developing the organization's policies, and all other persons who provide goods and services on behalf of the organization. Training must be appropriate to each individual's duties, and it must be provided as soon as practicable, and on an ongoing basis as changes are made to the organization' s accessibility policies.
  2. Small organizations must ensure processes for receiving and responding to feedback are accessible to persons with disabilities by providing or arranging for the provision of accessible formats and communication supports, upon request. Notice must be given to the public about the availability of accessible formats and communication supports.
  3. Small designated public sector organizations and large organizations (with 50 or more employees in Ontario) must provide or arrange for the provision of accessible formats and communication supports for persons with disabilities, upon request, in a timely manner that takes into account the person's needs, and at a cost that is no more than the regular cost to other persons. Organizations must consult with the person making the request in determining the suitability of an accessible format or communication support. Notice must be given to the public about the availability of accessible formats and communication supports.
  4. Large organizations must comply with various Employment Standards set out in the Regulation. There are a number of detailed requirements in this section of the Regulation, including with respect to recruitment; providing information to employees about accommodation; providing accessible formats and communication supports in relation to information needed for an employee's job, or information generally available in the workplace; documenting individual accommodation plans; developing return to work processes; and considering accessibility needs in performance management, career development and advancement, and redeployment processes/practices.
  5. Large designated public organizations must comply with requirements related to the design of public spaces that are newly constructed or redeveloped.

The Ministry of Economic Development, Employment and Infrastructure has been very active in monitoring compliance with the AODA over the last few months. We are seeing more enforcement efforts in respect of organizations that are not compliant to date, particularly in the form of spot audits, including a “retail blitz”, targeting large retailers over the last month.

In order to get ahead of any enforcement efforts and to ensure timely compliance, Ontario employers should already be thinking about these requirements and they should be taking steps to meet their obligations before the deadline rolls around."

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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MORE TIPS FOR YOUR OFFICE HOLIDAY PARTY THIS YEAR

Here are some additional tips for your workplace holiday party or event this year:

Location and Driving:

●    consider holding the event off-site at a licensed event venue

●    pre-arrange designated drivers;

●    provide taxi chits or a credit system with a local taxi service

●    hire a local transportation service, if not a taxi service

●    inform all employees not to personally drive to and from the event, unless that employee will consume no festive cheer at the event

●    arrange for a door supervisor to monitor if anyone leaves the event, after consuming any alcohol, and intends to operate a vehicle and, if there is a concern, for that supervisor to speak to a designated manager on site to intervene

Alcohol:

●    set a fixed time period when alcohol will be available or served

●    provide a set/controlled number of drink chits or tickets per guest

●    hire or use experienced, independent bartender(s) or server(s), with appropriate SMARTserve and training to identify, prevent and help manage over consumption

●    designate non-drinking employees or managers to monitor consumption at the event and identify any potential issues or concerns

●    offer and serve food and non-alcoholic options

Prevention – Discrimination and Harassment:

●    make sure the event is non-denominational

●    offer non-alcoholic alternatives and options to avoid any perception that the event is exclusionary or intended to apply only to certain staff/employees

●    consider setting a dress code for the event and communicating that to all employees/staff in advance

●    circulate your expectations about conduct in advance, in an effective way (mutual respect, professional workplace conduct, treatment of others)

●    ensure your discrimination and harassment policies are posted in the workplace in a common area and at the event

●    consider circulating your workplace discrimination and harassment policies in advance to all invited guests (employees/staff)

●    arrange for designated employee(s) to monitor the event and bring to your attention any concerns, so they can be addressed promptly, discretely and properly before any harm or embarrassment is caused

Happy holidays!

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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