FAMILY COURT - DON'T ASSUME YOU WILL GET YOUR LEGAL EXPENSES BACK - THE RULES:

No party in a Family Court case should presume he or she will be awarded his or her costs for the case. Generally, costs are only addressed by the Family Court at the end of the case, when the issues are decided on a final basis by either the Court or by settlement between the parties themselves. The exception – costs incurred for motions or other steps during the case may attract cost orders by the Court, depending on the circumstances. 

Several recent Family Court cases in Ontario offer more guidance and direction about entitlement to costs in Family Court cases and the factors usually applied by the Court to decide if costs will be granted to a party and, if so, the manner in which the amount of those costs will be determined. 

A.        JUDICIAL DISCRETION AND THE FAMILY LAW RULES:

Firstly, whether costs will be awarded to a party in a Family Court proceeding is discretionary. There is no absolute rule of law that the Family Court must award costs in a case. Section 131 of Ontario’s Courts of Justice Act, R.S.O. 1990, c. C. 43 statutorily confers discretion to the Family Court in determining any award of costs in a Family Court proceeding. Sub-section 131(1) reads:

Costs

131. (1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.  R.S.O. 1990, c. C.43, s. 131 (1).

Rule 24 of Ontario’s Family Law Rules, O. Reg 114/99 (the “Rules”) promulgate guiding and general principles for the Court’s exercise of discretion when determining costs in a Family Court proceeding.

Based on the Rules, the case law in Ontario identifies important and fundamental objectives for the Family Court to consider and balance when determining if costs should be awarded in a Family Court proceeding:

(a)       to partially indemnify successful litigants for the cost of litigation;

(b)       to encourage settlement; and

(c)       to discourage and sanction inappropriate behavior by Family Court litigants.

In exercising this discretion whether it is appropriate to award or deny costs to a party in a case, the Family Court should generally consider all of the relevant factors and circumstances in that case, to the extent they could be ascertained.

Reference:

Serra v. Serra, 2009 ONCA 395 (CanLII); 66 RFL (6th); [2009] Carswell 2475; [2009 O.J. No. 1905 (QL) (“Serra”)

Wallegham v. Wallegham, 2015 ONSC 8066 (CanLII) (SCJ) (“Wallegham”)

Scipione v. Scipione, 2015 ONSC 5982 (CanLII) (SCJ) (“Scipione”)

B.        ENTITLEMENT TO COSTS - GENERAL PRINCIPLES:

(a)       Presumption of Costs to the Successful Party and Unreasonable Behaviour:

Pursuant to sub-Rule 24(1) of the Rules, there is a presumption that a successful party is entitled to costs of a motion, enforcement, case or appeal. However, despite sub-Rule 24(1), sub-Rule 24(4) provides that a successful party who has behaved unreasonably during a case may be deprived of all, or part of, that party’s own costs, or be ordered to pay all, or part of, the unsuccessful party’s costs.

Pursuant to sub-Rule 24(5) of the Rules, in deciding whether a party has behaved unreasonably, the Court “shall examine”:

(a)      the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b)        the reasonableness of any offer the party made; and

(c)        any offer the party withdrew or failed to accept.  O. Reg. 114/99, r. 24 (5).

(b)       Divided Success and Mixed Results:  

If success in a step of, or the final outcome of, a case is divided, the Court may apportion costs as appropriate, pursuant to sub-Rule 25(6) of the Rules. If the step or the case is divided, or results in mixed success, sub-Rule 24(6) permits the Court to exercise discretion to apportion costs or order that no costs are payable. 

The case law in Ontario establishes that a Court may also assess and ascertain success on a global basis and award costs to whichever party was more successful. Similarly, where the parties have settled their step or case by negotiated agreement, the Court may award costs to the party who was more successful overall or on a global basis.

(c)       Non-Attendance; Unprepared for Case or Hearing:

If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step, the Court “shall award costs against the party” unless the Court orders otherwise in the interests of justice, pursuant to sub-Rule 24(7). Therefore, where a party has failed to attend at a step in the case or is inadequately prepared to address the issues at hand, sub-Rule 24(7) creates a presumption that the unprepared or absent party will pay the other party’s costs. However, the Court may exercise discretion if it would be in interests of justice to not award costs in the circumstances.

Generally, when deciding whether to award costs and, if so, the appropriate amount of costs, the Court should consider: (i) all of the factors and circumstances of the particular case; and (ii) the reasonableness of the parties’ conduct and their positions during the case, respectively, to the extent they could be ascertained.

If a successful party is determined to have acted unreasonably, sub-Rule 24(4) gives discretion to the Court to deprive the successful party of any costs, to apportion costs between the parties in a manner determined appropriate by the Court or require that the successful party pay the other party’s costs. 

Generally, unreasonable behavior that has previously been held to reach this threshold includes, but is not limited to: a “pattern of conduct” reflecting a party’s lack of respect for Court orders and/or the parent-child relationship, even if that objectionable conduct does not constitute bad faith.

(d)       Offers to Settle:

In determining entitlement to costs and the amount of costs to award, the Family Court will also consider whether either party made an offer to settle to the other about any of the issues in dispute.

If a party fails to accept a reasonable offer to settle, it potentially could result in that party paying costs to the offering party, particularly if the offer made meets the criteria required for offers to settle set out by sub-Rule 18(14) of the Rules. 

If sub-Rule 18(14) does not apply, the Family Court may still consider any written offer given by a party, the date on which any written offer was made, the terms of any such offer and the failure of either party to make or accept an offer to settle when determining costs.

(e)       Bad Faith:

If a party has acted in bad faith, the Court “shall decide costs on a full recovery basis and shall order the party to pay them immediately”, provided that the costs claimed by the other party are fair and reasonable, pursuant to sub-Rule 24(8) of the Rules.

C.        DETERMINING THE AMOUNT (QUANTUM) OF COSTS – GENERAL PRINCIPLES AND FACTORS:

Ontario case law establishes that, if the Family Court determines a party is entitled to costs, the following general principles and factors will generally be considered by the Court in determining the amount (or quantum) of costs to order: 

(a)       the amount awarded is not determined by actual costs incurred by the successful party;

(b)       the amount of costs must be proportional in relation to the issues and amounts dealt with and the final outcome of those issues;

(c)       costs should be fair and reasonable; and

(d)       parties’ expectations regarding the amount of costs that will be awarded is a relevant consideration in determining what is fair and reasonable or, what is generally referred to as, “proportionality” of costs.

Generally, the Family Court will also consider the following case-by-case, specific factors, pursuant to sub-Rule 24(11) of the Rules:

(a)       the importance, complexity or difficulty of the issues addressed;

(b)       the reasonableness or unreasonableness of each party;

(c)       the rates of the lawyer(s) involved for the party(ies);

(d)       the amount of time properly spent working on the case;

(e)       the cost of any expenses properly paid or payable; and

(f)        anything else, or other factor, that is relevant or appropriate to consider.

When determining the amount of costs payable, if any, usually the Family Court also considers the ability of a party to pay costs and the impact of ordering costs will have on the party, considering that party’s financial circumstances to the extent they are known. However, this factor will likely be less significant, or be given less weight by the Family Court in determining the amount of costs to be ordered than, for example: (a) the other, successful party’s overall success in the matter; and (b) the reasonableness of the behaviour of the party who will pay costs.

Historically, the Family Court has also taken a somewhat modified approach on costs in cases focusing on parenting matters (custody, access, etc.). Generally, the Family Court has been more cautious in ordering costs in these types of cases or with respect to these specific issues, primarily to try to ensure that parties with valid and meritorious claims or concerns will not be deterred from raising those matters in the Court, when appropriate or necessary to do so. 

D.        CASE EXAMPLE – MOTION DURING THE CASE:

            Wallegham v. Wallegham, 2015 ONSC 8066 (CanLII) (SCJ)   (“Wallegham”)

The Wallegham case is an example of the Court applying the principles and factors for costs set out above to an interim, or temporary, motion hearing in a Family Court case dealing with the temporary parenting of a child. 

(a)       Nature of the Motion – Brief Background:

The parties married in 2008 and separated May 1, 2015.  They had one child, born January 9, 2015, who had remained in the mother’s primary care since the date of separation. The mother’s and father’s dispute was acrimonious. 

Pursuant to a temporary Court order, dated June 26, 2015, the child was to remain in the mother’s primary care. The father was granted daytime access, but supervised by the mother only, three days per week in the parties’ former matrimonial home. Due to fairly significant conflict and acrimony between the parties, they later agreed that the father’s access would change and take place at the mother’s sister’s home under her supervision.

Subsequently the father brought a motion, heard on October 23, 2015, to change and expand the terms of his access, including eliminating any requirement for it to be supervised by anyone. Specifically, the father requested unsupervised access every weekend from Friday evening to Sunday evening and on every Wednesday for two-hour visits with the child. He also requested the option of taking the child to visit his extended family in London, Ontario, during his time with the child, as he requested. 

However, the mother opposed the father’s motion. Her position - the father’s access should continue to be supervised at a local YWCA access centre.

(b)       The Decision of the Court on Parenting:  

After the hearing, the Court ordered a more expanded, progressive access schedule in favour of the father:  

(i)        initially, the father would have the child in his primary care during the daytime three days per week (based on the earlier Court order) provided, however, that this access would take place in the father’s own home, supervised by his mother (the paternal grandmother);  

(ii)       beginning November 23, 2015, the father’s access would be increased to two evenings per week and one overnight per weekend from early evening on Friday to Saturday afternoon, without any supervision requirement; and

(iii)     the father was granted the opportunity to take the child to visit extended family in London, Ontario, during his primary care time with the child.

(c)       The Decision of the Court on Costs:

After the decision by the Court on the parenting dispute, the father claimed he had been successful on his motion and, therefore, he requested costs against the mother. The mother acknowledged: (i) there had been divided, or mixed, success to both parties on the motion; and (ii) the father had been more successful than she overall. However, the mother asserted that the father’s costs should be limited to only $750, minus the costs she had incurred to prepare her cost submissions to the Court, because she had offered, prior to the Court deciding the issue of costs, to pay the father $1,500, inclusive, to resolve the costs issues, but he did not accept that offer by her.

The Court ordered no costs were payable by either party.

By applying the principles and factors set out above, the Court decided neither party would have to pay costs to the other for this motion during the case because, among other reasons:

(a)       from an overall or global perspective, success between the parties was divided, or mixed, even though the father was somewhat more successful than the mother;

(b)       both parties initially formed and maintained unreasonable positions with respect to parenting time;

(c)       on the one hand, the father had acted unreasonably by requesting fairly dramatic and drastic changes in the parenting arrangements, which were inappropriate given his inexperience as a parent and the fairly tender age of the child and, on the other hand, the mother also acted unreasonably by rejecting the father’s mother (the paternal grandmother) as a person capable of supervising his access with the child;

(d)       the Court concluded that both parties, if acting reasonably, ought to have been capable of agreeing on and resolving on their own a compromise, similar to the ‘middle ground’ approach taken by the Court, in the best interests of the child, being the paramount consideration;

(e)       the father failed to make an offer to settle the matter out of Court;

(f)        the mother had limited financial means and a compromised ability to pay costs to the father; and

(g)       the mother had made an offer to pay costs in an amount equal to or higher than what the Court would have awarded, which the father failed to accept before the Court made its decision on costs.

E.         CASE EXAMPLE – FAMILY COURT TRIAL:

Scipione v. Scipione, 2015 ONSC 5982 (CanLII) (SCJ) (“Scipione”)

The Scipione case is another example of the Court applying the principles and factors for costs set out above, but with respect to a trial in a Family Court case involving many issues between the parties. However, the Scipione case also offers guidance for the treatment of costs on motions during a case, too, which are consistent with the Wallegham case.    

(a)       Nature of the Case – Brief Background:

The parties had a relationship for more than twenty years. After it broke down, they became embroiled in an acrimonious, protracted dispute, mostly about child and spousal support.  Eventually, when attempted negotiations failed, the husband brought a Family Court case. The case proceeded to a lengthy trial of issues, following which the Court rendered decisions to resolve all of the issues in dispute between the parties. When costs were determined, the Court ordered the husband, who was mostly unsuccessful at the trial, to pay costs to the mother in the amount of $52,000.

Less than one year after the trial decision, the husband brought a new motion seeking to revisit nearly all of the issues regarding support that were determined at the trial. Initially the wife responded by seeking to dismiss the husband’s new motion, but ultimately she made her own counterclaim against the husband and emphasized in her documentation filed with the Court that she preferred for the husband’s motion to be dismissed and that her counterclaims were made by her only in response to the husband’s new motion. In other words, she made it clear that she preferred for the entire case to be dismissed promptly, with the earlier trial decision continuing to apply.   

By negotiation in the midst of the hearing, the parties resolved all of the issues raised by the husband’s motion and the wife’s counterclaims, except for costs, by entering a consent on the third day of the hearing of the motion. However, based on their agreement, it was unclear to the Court who succeeded on the motion for the purpose of determining costs of the motion, as requested by both parties.

The wife claimed full indemnity for her costs ($83,034.46), plus HST, by asserting that the husband had been “entirely unsuccessful”. She also claimed that his motion caused her to incur significant legal fees to, effectively, revisit the very same issues that had been previously decided on by the Court. On the other hand, the husband argued that the wife should have to pay to him $20,000 in costs – he believed that success for the motion he brought was divided, or mixed. He also argued that costs should not be triggered, because the matter was resolved by settlement between the parties, rather than by a decision of the Court. He also claimed his total fees arising from his motion were approximately $55,375, before tax.

(b)       The Decision of the Court on Costs:

The Family Court did not make a decision on the specific family law issues in dispute in the case, because the parties reached a written settlement of those themselves. However, the Family Court did consider the costs in the case, which both parties requested.  

The Court ordered the husband to pay costs of $70,000.00 to the wife, inclusive of tax and disbursements, holding that he had been largely unsuccessful on his motion. The Court did not order full recovery of her legal expenses, because the “bill of costs” submitted by her to the Court did not identify or contain adequate information to justify an order for the full recovery of all of her legal expenses.  

The Court considered and applied the general principles and factors for determining costs in a Family Court case, as set out above and, in particular, addressed these specific issues for determining costs:

(i)        Offers to settle; Impact - the cost consequences triggered by offers to settle;

(ii)       Determining success - how to determine if a party is successful and how that success impacts costs of the case; 

(iii)     Divided (mixed) success - how to deal with costs when success is divided, or mixed, between the parties for the issues at hand; and

(iv)      Allocating costs for settlements - how costs are allocated if the parties resolve and settle their dispute before the case is actually decided finally by the Court;

(v)       Unreasonable Behaviour – the consequences and implications for costs; and

(vi)      Setting the amount - how to determine the amount of costs and, to do so, the detailed documentation that is generally required by a party to justify a certain amount of costs. 

(i)        Offers to Settle – Implication on Costs:

Firstly, the Family Court considered when offers to settle trigger cost consequences in Family Court proceedings.  

Pursuant to sub-Rule 18(14) of the Rules, a party in the case is entitled to costs, unless ordered otherwise by the Court, if that party: (a) had made a written offer to settle not less than seven days before the trial of issues; and (b) obtained a result at the trial that met, or was better than, the terms of that party’s offer to settle.

If these conditions are satisfied, the party is entitled to partial recovery of his or her legal expenses to the date on which the offer to settle was served and full recovery of his or her legal expenses as of that date, subject to the other factors generally to be considered by the Court before awarding those costs.

(ii)       Determining Success and Imp

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EMPLOYMENT AGREEMENTS - SOME BASICS FOR BOTH EMPLOYEES AND EMPLOYERS

HARD LABOUR

[BY WARDS PC LAWYERS]

Employers and employees should enter written employment agreements.

They define the employment relationship, the role of the employee, compensation (salary, benefits, bonus, pension, etc.), expectations and ideally how the relationship would end, if necessary.

Written employment agreements should specifically address how each party may end the relationship in future, if necessary and, if so, what compensation will be payable to the employee on termination, if there is no “cause” for the termination.

In Ontario, the Employment Standards Act, 2000 (the “Act”) provides for the basic rights of employees on termination, such as termination pay and severance pay, if payable. It is important to know that these are the basic, statutory entitlements, which must be paid by employers in Ontario (with a few, limited exceptions). However, employees are generally entitled to reasonable notice or pay in lieu of notice beyond the basic requirements of the Act. An employee’s entitlement to this additional compensation is determined by cases in Ontario (i.e., by the Courts and judicial system, or the “common law”), often in the context of wrongful termination claims by employees.

Ontario law provides that employers may terminate any employee without paying termination damages (unless there is a fixed period of employment), even in the absence of “cause”, if the employer provides reasonable notice of the termination or pay in lieu of that notice. This “common law” reasonable notice obligation, which is generally greater than the minimum requirements of the Act, can be reduced or limited by the employer by a properly-worded employment agreement that is negotiated and entered by the parties at the beginning of the relationship. Therefore, often very costly termination litigation is avoided when both parties mutually agree at the outset how the termination will be governed, which offers certainty and clarity to both.   

In Ontario, if an employer wishes to reduce or limit the “common law” reasonable notice to which an employee may be entitled on termination, here are few tips to consider:  

1.       employment agreements purporting to limit common law notice must be entered before the employment begins, not after, unless there is “fresh consideration” given to the employee, which cannot be continuing employment. Often employers offer more compensation or a promise of promotion, for example – in any event, an employee must receive a new benefit if the employer wishes to enter an employment agreement with the employee after the employment relationship has begun;  

2.       you cannot ‘contract out’ of the minimum requirements of the Act – you can only modify the common law notice requirements. For example, during a period of notice, an employee is entitled to continue to receive his or her benefits coverage, if any, for at least the minimum statutory notice period. If the termination clause is ambiguous, or does not clearly provide for benefits during at least the minimum statutory notice period under the Act, the entire termination clause may be of no effect or protection to the employer. Similarly, if an employer wishes to limit an employee’s right to a bonus on termination, the employment agreement must contain carefully worded language to reflect this, or that clause will not be enforced by the Court. Commonly clauses provide that bonuses will only be payable if the employee is employed at the time the bonus is to be payable. If that takes place during the notice period, generally the employee will be entitled to the bonus payment and, if the employer wishes to limit that entitlement, the employment agreement must be very clear and contain specifically-intended language; and

3.       Courts tend to interpret employment agreements strictly against employers, particularly with respect to termination clauses that purport to limit notice to the statutory minimums of the Act. Specific language needs to be incorporated to do so and employers often elect offer more generous terms than the statutory minimums when negotiating notice in employment agreements beyond the minimum requirements of the Act – doing so will generally increase the likelihood that their employment agreement would withstand judicial scrutiny if challenged by the employee.  

Employers should always try to use written employment agreements, especially if they do not wish to be exposed to common law notice requirements. If they do, they should also ensure they use carefully-created clauses and they should review their employment agreements periodically, as the law is evolving and what is enforceable today may not be enforceable tomorrow.

____________________________

Jason Ward – 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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YOU TOLD YOUR EMPLOYER YOU WERE GOING TO SPEAK TO A LAWYER - YOU'RE FIRED AFTERWARDS - CLAIMING REPRISAL

HARD LABOUR

[BY WARDS PC LAWYERS]

Under Ontario’s Employment Standards Act, 2000 (the “Act”), an employer cannot terminate or otherwise punish an employee who asserts his or her rights under the Act. This is known as “reprisal” by the employer and, generally, will cause the employer to be punished itself by the Ontario Ministry of Labour and, possibly, the Ontario Labour Relations Board.

The case:

Zongping (Peter) Luo v. Economical Mutual Insurance Company, 2015 CanLII 79023 (ON LRB)

Mr. Luo was terminated by his insurance company employer about one month after informing them that he “might get legal help” regarding a dispute in the workplace.

He made a complaint to the Ontario Ministry of Labour, including alleging reprisal against Economical. The case was escalated to the Ontario Labour Relations Board (the “OLRB”), which decided that Economical did not engage in reprisal in this particular case.

Reportedly Mr. Luo did not specifically mention the Act when he asserted that he “might get legal help” – a factor. The OLRB concluded this statement by Mr. Luo could conceivably encompass a fairly broad range of potential actions, not only limited to those available to him under the Act.

Mr. Luo also admitted in the hearing that he was unaware of the Act when he made his statement – that did not help his case, either. Not long after he was terminated, Mr. Luo also sent an e-mail to the employer referring to wrongful termination and discrimination, but nothing about reprisal.

Ultimately, the OLRB held:

There are no ‘magic words’ required for an employee to invoke the protection of s. 74 of the Act [the reprisal provision of the Employment Standards Act] so it is not necessary for an employee to refer specifically to the Act . . . However, where the background facts do not appear to raise issues of the enforcement of the Act and the employee makes only a generalized threat to seek legal assistance – as in this case – the protection of s. 74 of the Act cannot be engaged.”

Therefore, according to this case, making generalized assertions or threats to your employer, including that you may speak to a lawyer, may not support a claim of retaliation against your employer, if you believe you were punished for doing so. You need to be specific, ostensibly. Specifically make a request for your employer to comply with the Act or the other health and safety legislation that applies to your workplace, such as Ontario’s Occupational Health and Safety Act (which also addresses harassment in the workplace). Effectively, you will need to seek to exercise your rights very specifically under the Act or other legislation, or you will not likely succeed in a complaint of reprisal against your employer. 

In addition to a reprisal claim, an employee may still have a claim for wrongful termination and other damages that may be available, depending on the circumstances. 

____________________________

Jason Ward – 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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ESTATE PLANNING - MAKE SURE YOU DEAL WITH YOUR LOYALTY REWARD POINTS, OR POTENTIALLY LOSE THEM

You likely have loyalty-based reward points of some kind, such as Air Miles or Aeroplan.

You might be surprised that the reward points you accumulate may not be transferable by you to your beneficiaries. It depends on the contractual terms and conditions of your program, which you likely have never read or considered. You should check on that. Alternatively, the contractual terms and conditions of your loyalty plan may require that your points be utilized within a certain period of time, or they expire. This may present an issue if you pass away, of course.

According to the CBC, your loyalty program may have sole discretion about whether your points could be transferred to another if you pass away. If they are, there could be a significant fee involved.

You should:

1) contact your loyalty program and check into the terms and conditions, including your ability to gift or bequest your accumulated points on your death or disability;

2) request your loyalty program to inform you what information or documentation would be required to successfully transfer or bequest your points on your death; 

3)  keep a document or memo about your loyalty points to inform your trustee or heirs about your points/program(s) and any information they may need to transfer those on your death; and

4) speak to your estate planning lawyer about incorporating into your Will a gift or bequest of your loyalty reward points, with the above information in hand. 

For more information, Umair Adbul Qadir of Hull & Hull LLP provides helpful insight into dealing with your loyalty rewards programs in this recent blog.

CBC's recent article - click here.

________________________________

Jason Ward – 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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WAIVERS AND INJURY IN HOCKEY, SKIING OR OTHER ACTIVITY - YOU SIGNED FOR YOURSELF OR YOUR CHILD. WILL IT STAND UP?

Most of us have done it – sign a waiver of liability, either for ourselves or our child. Often we do so at the time of registration or last-minute as we are about to get on the ride, ski, play hockey or enjoy other fun activities. Signing waivers for ourselves or our minor children seems to be a part of life these days, especially online.

So, if there is an injury, will the waiver prevent the injured participant from having any recourse, such as suing for damages arising from the injury?

The answer – yes, the waiver, if properly worded, may be effective, but not always.  

The case:

Levita v. Alan Crew et al., a recent decision of the Ontario Superior Court of Justice.

This hockey player was seriously injured by a body check in a ‘no contact’ league, including a broken leg. The player had signed a waiver of liability when he had registered for the season.

The language of the waiver was fairly comprehensive and specifically-worded, including:

‘The risks and hazards of ice hockey include, but are not limited to, injuries from:

[…]

Collisions with the rink boards, hockey nets, and ice;

Being struck by hockey sticks and pucks;

Physical contact with other participants, resulting in injuries to the eyes, face, teeth, head and other parts of the body, bruises, sprains, cuts, scrapes, breaks, dislocations and spinal cord injuries which may render me permanently paralyzed”

The player sued the hockey league and the other player who hit him. Among other things, he claimed the waiver had not been adequately explained to him at the time and that he had not been provided the opportunity to properly review and consider it. 
 The Court determined there are inherent risks in playing hockey, including bodily contact and injury, even in a ‘no contact’ league. Specifically:
 
The no-contact nature of the match does not eliminate the inherent dangers of the sport of ice hockey. Players will inevitably collide, sticks will inevitably clash, pucks will fly in unforeseen directions.”
 
By playing in the game, the player is accepting those inherent risks and, effectively, impliedly consenting to this risk of injury. However, if it could be shown or determined that an injury is suffered because of another participant’s definite resolve to cause serious injury to another, this will exceed the acceptable and inherent risk of the activity, which a person assumes by agreeing to participate in the activity.

The Court held that neither the league nor the other player was liable. For the hitting player, the case largely turned on the evidence that was introduced – specifically, there was conflicting evidence about, for example, the location of the puck at and before the body contact, how the other player hit the injured player and whether it was from behind (a penalized offence in hockey, of course) and if there was enough evidence to determine that the other player held a deliberate intention to injure the player.

With respect to the league’s liability, the Court did not believe there to be adequate evidence to demonstrate that the hitting player constituted a significant risk before the game in question. No evidence was established that the referees in the game were unqualified, ineffective or that the rules of play were not enforced during the game in question. In fact, the league’s rules, regulations and penalty system exceeded those recommended by the hockey governing body, the Canadian Hockey Association. Ultimately, the Court did not find that the league failed to create and maintain a safe and reasonable environment in which to play hockey and, therefore, was not negligent.   

Because this evidence was conflicting, unclear and not sufficiently established by the injured player, the league and the hitting player were not held liable for damages.

Even if the evidence had been established by the injured player and the Court had found that the league was negligent in its duties owed to the injured player, the Court also concluded that the waiver signed by the injured player constituted a full and complete defence to the league.

Because of the specific language in the waiver, which the Court believed to be unambiguous as to the risks associated with the play of hockey”, including because it specifically identified the risk and danger that was actually claimed by the injured player, the league would not have been liable, even if negligent.

Unfortunately for the injured player, failing to read a waiver for before signing it was not enough for him to escape the harsh effect of the waiver. The Court effectively determined that it is open and up to the participant to satisfy himself or herself about a waiver before signing the document, unless there are exceptional circumstances that should suggest otherwise.

This is not the first waiver case in Ontario involving a person injured in a recreational (or other) activity in Ontario. Effectively, each case had to be determined case-by-case basis and on the specific facts of that case.

However, this case, like cases before it, affirms the general law in Ontario that waivers will be effective generally, if properly worded and signed by a participant. A waiver containing clear and unambiguous language, specifically identifying the risks that are involved, will likely be a full defence to any claim by an injured participant, even if the waiver was not explained to the injured player.   

The exception remains, of course, that if another participant exhibits a clear and deliberate intention to cause injury or harm to another participant, this will exceed the implied consent of the injured player to assume the inherent risks of the activity and avoid the effect of the waiver.

The message? Despite that it may be inconvenient and challenging at the time, particularly if there are children involved, and even though what appears to be legal jargon will surely be present, waivers should be read before participating in recreational and other activities.  

____________________________

Jason Ward – 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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LEAVING A TIP? COUNTING ON TIPS FOR YOUR PAY? KNOW THIS - THE NEW DEAL IN ONTARIO

HARD LABOUR

[BY WARDS PC LAWYERS]

So-called “tip theft” in Ontario will be no more, much to the delight of employees and the concern of businesses in industries that rely on tips and gratuities.

Ontario’s Protecting Employees’ Tips Act, 2015 (“Bill 12”) is now passed and will be the law in Ontario as of June 10, 2016. Bill 12 will change and update Ontario’s Employment Standards Act, 2000 (“ESA”). There will be a new Part V.1 of the ESA, called Employee Tips and Other Gratuities.  

Effectively, Bill 12 will disallow employers from withholding, making deductions from or collecting tips and other gratuities from employees, unless otherwise authorized to do so. There is similar legislation already in effect in other provinces.

Under Bill 12, “tips and other gratuities” will include:

  • voluntary payments made by a customer to an employee that could reasonably be inferred as intended by the customer or an employee to be kept by the employee or shared among other employees
  • voluntary payments made by a customer to an employer that could reasonably be inferred as intended by the customer or an employee to be redistributed to an employee or employees
  • payment of a service charge or similar charge that could reasonably be inferred as intended to be redistributed to an employee or employees
  • other payments (that are specifically set out by legislation)

However, Bill 12 exempts “such charges as may be prescribed relating to the method of payment used, or a prescribed portion of those charges” and any other exempted payments as specified by regulation. So far, there has not been anything enacted or published by the Ontario government to give any guidance about the types of other or additional payments by customers that would be included in, or exempted from, the definition of “tips and other gratuities”.

There could potentially be an issue about service charges that credit card companies charge to businesses, mostly on a per transaction basis. Based on Bill 12, if, for example, if a customer uses a credit card and leaves a payment exceeding the cost for the meal (i.e., an additional 15%), the full excess amount will have to be re-directed to the employee server, notwithstanding that the restaurant business may have to pay a service fee to the credit card company on that excess amount (often 2.5%). This is likely to cause an issue with Bill 12 and will likely be addressed by the regulation(s) that will form part of the new law in the ESA. However, as of today, the employer business appears to be responsible for absorbing this hidden expense under Bill 12.   

If a workplace is governed by a collective bargaining agreement, that will prevail over Bill 12 until the collective bargaining agreement must be renewed and, if an acceptable tips and gratuities process is not negotiated as part of the renewal, Bill 12 will take effect and govern.

If employers “pool” the tips received in the workplace, based on a current policy in place, the amounts must be paid out to the eligible employees in the pool ultimately. Employers, however, will generally not be able to share in the pooled tips, except in very limited circumstances. This may include an owner who actually does the same, or very similar work, to the employees in the place of business (i.e., also serving customers).

There remains some uncertainty about how Bill 12 will work in Ontario, but it is likely some of this uncertainty may be addressed by the regulations that will accompany the changes to the ESA or, alternatively, by case law decided after it comes in into effect.

Employers will hope for specific exemptions for credit card transactions and often other related fees that often are charged in special services, such as for banquets or special event services. 

Employers should also be familiar with this new law and update or create their workplace policies to reflect these changes, subject to these uncertainties that will have to be clarified and sorted out.

____________________________

Jason Ward – 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.

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EMPLOYERS CANNOT MAKE AN EMPLOYEE SIGN A WAIVER OF LIABILITY FOR WORKPLACE INJURY - THEY CAN STILL SUE

HARD LABOUR

[BY WARDS PC LAWYERS]

Workers’ comp’ is governed in Ontario by the Workplace Safety and Insurance Act, 1997, SO 1997, c. 16 and its regulations (the “Act”).

Employers Required to Register (Covered by the Act):

The Act contains lists of types of industries; namely, Schedule 1 and Schedule 2.  A worker employed in an industry or business listed in Schedule 1 or Schedule 2 of the Act is covered by the Act and the employer must be registered.

Schedule 1 Industries include (but are not limited to): mining and related industries; manufacturing; transportation and storage; retail and wholesale trades and construction. Different types of service-related industries are also covered by the Act, including temporary agencies, hospitality and full-time domestic workers.  

Schedule 2 Industries include (but are not limited to):  provincial governments; railways and telephone companies licensed by the federal government.  Although municipal governments are listed in Schedule 2, many have opted to become Schedule 1 employers. 

Some employers can make an application to the Workplace Safety and Insurance Board (the “WSIB”), the governing body administering the Act, to be considered a covered industry. The WSIB is effectively an independent trust agency that administers compensation and no-fault insurance for Ontario workplaces. The WSIB provides wage loss benefits, medical coverage and assistance for workers to return to the workplace.

“By application” industries include (but are not limited to):  financial institutions; health care practitioner practices; trade unions; private day cares and travel agencies, for example. 

Employers that are uncertain if they are covered by the Act should review the complete list of Schedules in Ontario Regulation 175/98 of the Act. They could also contact the WSIB for this information.

Most Ontario employers that employ workers (including family members and sub-contractors) must register with the WSIB within ten (10) days of hiring a full-or part-time worker. Registering with the WSIB provides workplace insurance coverage for those workers, including access to healthcare practitioners.

Employers Not Required to Register (Not Covered by the Act):

There are a few industries that do not have to register. Some employers considered not to be a “covered business or industry” include (but this is not an exhaustive list):

  • Banks, trusts and insurance companies
  • Computer software developers
  • Private health care practices (such as those of doctors and chiropractors)
  • Trade unions
  • Private day cares
  • Travel agencies
  • Clubs (such as health clubs)
  • Photographers
  • Barbers, hair salons, and shoe-shine stands
  • Taxidermists
  • Funeral directing and embalming

Generally, the Act specifically does not cover certain workers. These include: 

  • persons employed casually by an employer to do work other than for the purposes of the employer’s industry (for example, if you are hired on a very irregular basis to mow the lawn of a company). 
  • outworkers, or a person to whom work is given to be done in their own home or on other premises not under the control of the person who gave out the work. 

The Construction Industry:  

Employees of construction related firms are covered by the Act and can claim benefits and services from the WSIB if they meet the definition of a “worker” in the Act.  

As of January 1, 2013, these four categories of people who work in the construction industry are also considered “workers” under the Act: 

  • independent operators
  • sole proprietors
  • partners in partnerships
  • executive officers in corporations 

These people are “deemed workers” and, therefore, are entitled to claim benefits from the WSIB if they get injured at work. They are also “deemed employers,” even if they do not hire another worker. This means they must register under the Act unless they fall within a few, limited exemptions.

Even if an employer is not required to register, the employer can apply to obtain this insurance for its workers through the WSIB.

Employers Not Required to Register – You Cannot Make an Employee Release His or Her Rights to Sue You About an Injury in the Workplace:

So, if an employer is not required to register and does not voluntarily do so, can the employer make the employee sign a release of liability if the employee is injured in the workplace?

No – it is contrary to public policy in Ontario. In fact, employees cannot contract out of their protections under the Act, either, or be requested by employers to do so.

The case:

Fleming v. Massey, a January, 2016 decision of Ontario’s Court of Appeal.

This case means that employees, who are employed by businesses that are not required to register under the Act, may sue the employer when the employee is injured in a workplace event, even if the employee may have signed a waiver of liability to the employer previously.

Therefore, excluded employers who have employees sign a release or waiver for personal injury liability for, for example, corporate events or outings may not actually be protected from a claim if the employee is injured.

Effectively, the case determines that Ontario’s public policy for the Act does not allow an employee to ‘contract out’ of the legal protections available to that employee. Here, at the employer’s request, the employee had signed a waiver of liability releasing the employer from liability for damages sustained by the employee in the course of the employment. The employee initially sued the employer based on accident injuring the employee on a go-cart track. The employer successfully relied on the waiver at the trial level to have the claim summarily dismissed. The employee appealed, arguing that he was an employee under the Act and that the waiver should not be effective because it is contrary to the underlying principles and intent of the Act.

The issue raised for the Court was if the employee could legally “contract out” of his right and ability to sue the employer under Part X of the Act and, therefore, if the employee had (inadvertently) voluntarily assumed the risk of injury in his workplace. The Court of Appeal did not support the waiver signed by the employee and, in doing so, clearly affirmed that the Act constitutes a “categorical rejection” of the notion that employees voluntarily assume workplace risks. 

The Court of Appeal held the employee was an uninsured employee under the Act, including because the WSIB categorizes go-kart tracks as “non-covered”.  To be insured under the Act, the event or facility must voluntarily apply for coverage under the Act and for that coverage to be approved by the WSIB, which the employer in this case had not done. As a result, Part X of the Act, which applies to employees working in industries not required to be registered under the Act and, in particular, sub-section 114(1) of Part X applied, which gives uninsured workers the right to sue employers in certain circumstances.  That section reads:  

“A worker may bring an action for damages against his or her employer for an injury that occurs in any of the following circumstances:

  1. The worker is injured by reason of a defect in the condition or arrangement of the ways, works, machinery, plant, buildings or premises used in the employer’s business or connected with or intended for that business.
  2. The worker is injured by reason of the employer’s negligence.
  3. The worker is injured by reason of the negligence of a person in the employer’s service who is acting within the scope of his or her employment.”  

The employee successfully argued that he had a statutory right under the Act to sue his employer.

Once that was settled by the Court, it had to decide if the employee had “contracted out” of that right by signing the waiver given to him by the employer. After reviewing the historical law in this area, the Court of Appeal, largely based on a public policy perspective, ultimately changed the law and held that the Act was designed and intended to assure compensation to employees injured in the workplace, regardless of fault. In exchange for this coverage, employees gave up the ability to sue their employer for workplace injury. For those limited number of employees not employed by an employer covered by the Act, the Act gives them a statutory right to sue their employer for workplace injuries, which is embodied in Part X of the Act currently.  

Therefore, uninsured employees are not permitted to contract out of their protections under the Act any waiver to the contrary will not be effective.

Because of this case, employers should reconsider their use of waiver of liability by employees for workplace injury and also consider voluntarily applying for insurance under the Act, if they are not already required to be registered. This would prevent lawsuits from employees for workplace injury and cause any such injuries to be dealt with solely under the Act.   

____________________________

Jason Ward – 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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ONTARIO'S NEW RETIREMENT PENSION PLAN - IT AFFECTS EVERY BUSINESS AND EMPLOYEE - WHAT YOU NEED TO KNOW

HARD LABOUR

[BY WARDS PC LAWYERS]

The Ontario Retirement Pension Plan (the “ORPP”), is soon to be a provincially-run plan that, similar to the federal Canada Pension Plan, will be funded by equal contributions from both employers and employees.

What Is It and When Does It Take Effect?

Basically, the ORPP is a compulsory Ontario-managed pension plan intended to give employees a more certain, predictable income structure in retirement. It is intended to improve the retirement position of Ontario employees who do not have an established, secure workplace pension plan.

To that end, the ORPP requires that every employee participate in either the ORPP or in a “comparable” workplace pension plan by 2020. While “comparable” is not fully certain, “comparable” workplace pension plans will include registered plans that comply with federal and provincial pension legislation and that have minimum contribution requirements, including defined benefit plans and defined contribution plans. The effective difference between these two types of plans is that the former plans are generally held and managed by the employer, but the latter allows the employee to manage the investment.

The ORPP will be in effect on January 1, 2017. The Ontario Government will be releasing more information and guidance on how to comply with the new plan going forward. Employers should pay attention and keep updated on the plan requirements.

How Does It Work?

The ORPP will roll-out in four “waves”, based on the number of employees of an employer and the type of registered workplace plan currently in place.

The largest employers will be affected firstly. 

Contribution rates by employees and employers will be implemented when the business is enrolled.

Both employers and employees will make equal, graduated contributions to the ORPP. The rate will start at 0.8 percent by each (1.6 per cent in total). The rate will be capped at 1.9 per cent by each (3.8 per cent in total) based on the employee’s annual earnings up to a maximum of $90,000.

When contributions take place at the maximum rate, they will continue to contribute at that rate. Earnings by an employee that exceed $90,000 annually will be exempt from ORPP contributions. 

The mandatory enrollment and contribution schedule is basically:

  1. Wave 1 - Large employers (with 500 or more employees) without registered workplace plans. Contributions start January 1, 2017 at a rate of 0.8 per cent. This rate will increase to 1.6 per cent in 2018 and continue or remain at 1.9 per cent as of 2019 for both the employer and employees.
  2. Wave 2 - Medium employers (with 50-499 employees) without workplace plans. Contributions start January 1, 2018 at a rate of 0.8 per cent. This rate will increase to 1.6 per cent in 2019 and continue or remain at 1.9 per cent as of 2020 for both the employer and employees.
  3. Wave 3 - Small employers (with 50 of fewer employees) without registered workplace plans. Contributions start January 1, 2019 at a rate of 0.8 per cent. This rate will increase to 1.6 per cent in 2020 and continue or remain at 1.9 per cent as of 2021 for both the employer and employees.
  4. Wave 4 - Employers that have registered plans, but which do not meet comparability threshold test. Contributions will start and remain at a rate of 1.9 per cent as of January 1, 2020. An employer that has already has a registered pension plan existing as of August 11, 2015, or that has already initiated the process of registering a plan, will be Wave 4. If it is a “comparable” plan as of January 1, 2020, there will be no requirement for the employer to enroll in the ORPP‎. In addition, any employer not having a workplace pension plan, but which establishes a “comparable” plan prior to that employer’s Wave coming into effect will not be required to enroll in the ORPP. 

 What Do I Do?

Get ready. Contact the Ontario Retirement Pension Plan Administration Corporation (the “Corporation”) for more information to plan for this new workplace requirement. If you do not already have a workplace pension plan, the ORPP will require your business to make these mandatory contributions soon.

You should determine what Wave will apply to you, so you comply with the deadlines for enrolment.

If you have a registered workplace pension plan, or will have a plan before your Wave takes effect, you should determine if it qualifies as a “comparable” plan. If it does not meet the threshold, you will need to decide whether to change your registered plan or be enrolled in the ORPP.

The Corporation plans to contact employers soon about their current registered plans and to assess coverage and whether ORPP enrollment is required, but it is best to get a head start and start planning for this workplace change that is coming very soon. 

___________________________

Jason Ward – 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.

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MYTH - THERE IS NO "CAP" ON YOUR DAMAGES FOR WRONGFUL TERMINATION - THEY CAN EXCEED 24 MONTHS' PAY IN LIEU OF NOTICE

HARD LABOUR

[BY WARDS PC LAWYERS]

Despite what you may have heard, damages for wrongful termination in Ontario are not ‘capped’ at the equivalent of two years (24 months) reasonable notice. In other words, in special (although rare) circumstances, a terminated employee can be entitled to more than the equivalent of 24 months’ of compensation if the employee is wrongfully terminated.

The high-water mark for reasonable notice damages in Ontario, to my knowledge, is the equivalent of 30 months’ pay in lieu of notice, which was awarded in a 1999 Ontario case.

Generally, exceeding this so-called “cap” on damages is only done by the Court in “exceptional circumstances”, which are not clearly defined by the law in Ontario.

In a recent case, the Ontario Court of Appeal awarded 26 months’ damages and, in doing so, spoke of “exceptional circumstances” in this way:

“[30] Canac asks this court to set aside the trial judge’s award of damages of 26 months of notice. Canac founds its position on this court’s decision in Lowndes v. Summit Ford Sales Ltd., 2006 CanLII 14 (ON CA), [2006] O.J. No 13 (C.A.). At para. 11 of Lowndes, this court stated that while the reasonable notice period is a case-specific determination and there is no absolute upper limit on what constitutes reasonable notice, generally only exceptional circumstances will support a notice period in excess of 24 months. Canac says that the trial judge erred in principle by failing to make a finding of exceptional circumstances before awarding damages for reasonable notice in excess of 24 months. Consequently, it submits, this court can set aside the award. It urges this court to make an award of between 16 to 18 months but, in any event, not greater than 24 months.

[31] I agree that the trial judge failed to expressly make a finding of exceptional circumstances. I note that as part of the agreed statement of facts, the parties presented an agreed damages calculation that included figures for up to 26 months of notice. This may explain why there is no explicit finding of exceptional circumstances as it clearly indicates that an award beyond 24 months was in the contemplation of all parties. In any event, however, given the Keenans’ ages and lengths of service, and the character of the positions that they held, I would not interfere with the award.

[32] Lawrence Keenan and Marilyn Keenan worked for Canac for approximately 32 and 25 years respectively. Together, their average length of service was 28.5 years. They were 63 and 61 years of age at the time of termination. They held supervisory, responsible positions in which they oversaw the installation of Canac’s products and met with Canac’s customers as its representatives. For over a generation, they were Canac’s public face to the outside world. Over a period of approximately thirty years – the entirety of their working lives – the Keenans’ income had come from Canac and they relied on that income to support themselves and their family. Even during the approximately two years that they provided some services to Cartier, a “substantial majority” of the Keenans’ work continued to be done for Canac. These circumstances justify an award in excess of 24 months and I see nothing wrong in the trial judge’s finding that 26 months’ notice was reasonable.”  

Therefore, if the circumstances are right, an employee who is wrongfully terminated is not subject to the “cap” of 24 months’ pay in lieu of notice. More can be available, but only in fairly rare and exceptional circumstances.

An employee may also be entitled to additional damages, such as for breach of human rights, failure by the employer to perform the employment contract honestly and punitive or aggravated damages, but each case is different and each must be assessed on an individual basis. 

____________________________

Jason Ward – 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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EMPLOYER WINS THIS ONE - HOW TO SHOW "JUST CAUSE" FOR TERMINATION

HARD LABOUR

[BY WARDS PC LAWYERS]

Proving “just cause” for termination is a challenging task for employers. Employers must properly and diligently document a progressive discipline process before terminating the employee generally, including documentary evidence of successive written warnings, cautions and opportunity to rectify the improper conduct by the employee. 

However, if these steps are taken, the Court will recognize “just cause” and support an employer’s position in a lawsuit by an employee for wrongful termination.

Here is an example: Cotter v. Point Grey Golf and Country Club, a recent British Columbia case. In fact, the evidence of effective progressive discipline was good enough that the Court allowed for a summary trial to be held.

The sixteen-year employee was an accountant and comptroller for the employer. Effectively, the employer refused to acknowledge and sign-off as management to a resolved property tax assessment dispute of the employer. The dispute has been resolved fully, but the employee would not sign-off on it to the employer’s auditors.

The employee effectively ignored two written warnings from his manager not to continue to discuss the matter with anyone without the knowledge or consent of his manger. He continued to do so.

The property tax assessment issue was reviewed several times by management, the Board and the employer’s auditors, all of which determined there was no issue and no problem for the employer. But the employee still refused to sign the audit documentation.

He was terminated by the employer, for cause.

The Court allowed a summary trial and held that:

  • the matter was not complex and the case law in the area was settled;
  • the documents "spoke for themselves" and removed many issues of credibility; and
  • the issues the employee raised were not relevant to the issue of whether his employment had been terminated for cause.

Ultimately the Court found that the employee had been willfully disobedient, unreasonably refused to take direction and effectively ignored the repeated warnings given to him by the employer. 

His willfully insubordinate behaviour and communication with third parties, contrary to his management’s direction, were inconsistent with the employee-employer relationship.

The employee’s claim was dismissed. He was awarded nothing and had to pay costs to the employer. 

This case demonstrates the importance of creating and maintaining good written records of warnings and employee discipline.

If the employer can show this type of documentary evidence effectively, it will increase its chance of succeeding in a ‘for cause’ termination.

____________________________

Jason Ward – 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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YOUR PRIVACY - POSTING THAT INTIMATE VIDEO ONLINE WITHOUT YOUR CONSENT - $141,000 DAMAGES AWARDED

Publishing online very personal or intimate information or images of another may now be a very costly mistake. 

The Ontario Court recently granted, in a case called Jane Doe 464533 (the Plaintiff’s name cannot be disclosed), damages and costs totaling $141,000, plus an order for the offending Defendant to destroy any video or images he retains of the Plaintiff and prohibiting him from sharing any intimate images of her. He was also ordered not to communicate with the Plaintiff or any of her family.

The Plaintiff was a young woman in her late teens. Due to pressure from her ex-boyfriend, she agreed to share with him a sexually explicit video of herself. He promised he would not share it with anyone else. However, he subsequently posted the intimate video of her on a pornography Web site without her knowledge or consent. The police refused to criminally pursue the matter.

The Plaintiff eventually sued him for breach of her privacy and, specifically, for his public disclosure of embarrassing private information about her, after attempting to settle the matter with lawyers involved. The Defendant boyfriend did not ultimately defend the lawsuit, so the Court decided the case and awarded damages to the Plaintiff without a challenge to the Plaintiff’s claim. However, the Court reviewed the law and provided a well-reasoned, thorough decision, even though the Defendant did not defend the claim. The case is subject to a publication ban of the name of the Plaintiff.

The Plaintiff relied on fairly recent, emerging cases in Ontario recognizing an expanding ability for a person to sue another directly for breach of privacy, or for “intrusion upon seclusion”.

The Court awarded the Plaintiff $100,000 in damages (noting that she had limited her claim to this maximum amount in the lawsuit). These damages are much higher than the $20,000 “cap” that had previously been established by Ontario’s Court of Appeal in the earlier cases for intrusion upon seclusion.

Therefore, this case expands on privacy protection in Ontario and allows a person to civilly claim and be awarded significant damages when that person’s personal/private information is published online, provided this test is met.

To succeed, it must be proved that “the matter publicized or the act of the publication” is “highly offensive to a reasonable person” and is not “of legitimate concern to the public”.

Undoubtedly the law of privacy in Ontario continues to grow and expand. More cases will be needed to clarify and further develop this law, but this case clearly indicates the Court’s willingness to do so, including for “public disclosure of embarrassing private facts”. 

____________________________

Jason Ward – 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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MAKING A COMPLAINT ABOUT HARASSMENT OR SAFETY IN YOUR WORKPLACE - YOUR RIGHTS AND PROTECTION

If you complain about harassment or safety issues in your workplace, what protection is available to you?

The Ontario Labour Relations Board will reinstate you, presumptively, or, alternatively, award you lost wages and pay if your employer punishes you for doing so by terminating you or taking away your worktime.

In a recent case, a restaurant employee had made a complaint about harassment in the workplace to her employer. She also asked the employer for a copy of its workplace harassment policy, which is now mandatory in Ontario under the Occupational Health and Safety Act (the “OHSA”).

The employer did not provide the employee with a copy of its harassment policy.

After the employee made a complaint to the Ministry of Labour, it began an inspection under the OHSA. The employer told the employee it wanted her to meet with its ‘health and safety committee’, to which she agreed. She again requested a copy of the policy – it was not provided.

The employer did not contact her again and, what’s more, cut her employment time after the Ministry inspection was initiated, even though the employee had requested several times to be scheduled to work.

Therefore, the employee filed a reprisal complaint under the OHSA with the Ontario Labour Relations Board. The employer failed to attend the hearing, not surprisingly.  

The Board held that, at least in part, the employer’s reason for not scheduling the employee to work was because she had raised health and safety issues in the workplace.

The Board said: “The presumptive remedy for a reprisal in contravention of section 50 of the Act is to reinstate the discharged employee and to provide the employee with lost wages from the date of the discharge up until the date of the reinstatement subject to mitigation.”

Ultimately, the employee told the Board she did not wish to return to work, given the treatment she had received.

As a result, the Board decided that, “Given the manner in which her employment ended, I do not find that reinstatement would be a viable remedy in the circumstances.  I agree with counsel that, in the place of reinstatement, Ms. Thompson is entitled to damages for loss of employment.”

In the end, the Board awarded the employee damages of $7,437.16 for “loss of employment and loss of wages”.

The case:

Thompson v 580062 Ontario Inc (Slainte Irish Gastropub), 2015 CanLII 76907 (ON LRB)

____________________________

Jason Ward – 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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