IT'S THE LAW - HAVE YOU BEEN GIVEN YOUR ESA POSTER?

To help ensure that employers understand their obligations and that employees know their rights, the Minister of Labour has prepared and published an Employment Standards Poster entitled “Employment Standards in Ontario”.

This poster describes important rights and requirements under the Employment Standards Act, 2000 and must be posted in the workplace where it is likely that employees will see it. Employers are also required to give every employee a copy of the poster.

All employees in Ontario that are covered by the Employment Standards Act, 2000 must receive a copy of the poster from their employer.

Changes in the law that came into force on May 20, 2015 also require employers to provide employees who are covered under the ESA with a copy of the most recent version of the Employment Standards Poster.

Employers must provide all current employees with a copy of version 6.0 of the Employment Standards Poster by June 19, 2015. Any new employees hired after May 20, 2015 must be given a copy within 30 days of their date of hire.

Employers are required to post the most recent version (6.0) of the Employment Standards Poster published by the Minister of Labour in the workplace where it is likely to come to the attention of employees. Most workplaces covered by the Employment Standards Act, 2000 are required to post the poster. The poster must be displayed in English. If the majority language of a workplace is a language other than English, and the ministry has published a version of the poster in that language the employer is required to post a copy of the translation next to the English version of the poster.

An employer may provide the poster as a printed copy or as an attachment in an email to the employee. In addition, an employer may provide the poster via a link to the document on an internet database, but only if the employer ensures the employee has reasonable access to that database (i.e. must ensure the employee has access to a computer and is able to access a working link to the document) and ensures the employee has access to a printer and that the employee knows how to use the computer and the printer.

The Poster can be downloaded for free at: http://www.labour.gov.on.ca/english/es/pdf/poster.pdf

If an employee requests a copy of the poster in a language other than English and the ministry has published a version of the poster in that language, the employer must provide the translated version in addition to the English copy.

The earlier version should be removed from the workplace and replaced with version 6.0. An employer who is required to post the poster and who fails to post version 6.0 on or after May 1, 2015 would be in violation of the Employment Standards Act, 2000. This could result in an employment standards officer taking enforcement action.

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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Spousal Support - Unmarried? Yes, You May Still Be Entitled. Some Basic Tips - What You Need To Know About Spousal Suport in Ontario

Spousal support.........some basic points to consider:

Generally, there are three types of spousal support in Ontario: (1) compensatory; (2) contractual (i.e., pursuant to a domestic contract, or “pre-nup”, for example; and (3) non-compensatory (the most common type of support ordered by Ontario Family Courts) currently, which is generally thought of as a ‘needs-based’ type of support. “Need”, at least on an interim basis, generally goes beyond basic necessities and is most often assessed based on the standard of living to which the claimant became accustomed during the relationship.  

A recent Ontario case is illustrative: Knowles v. Lindstrom, 2015 Ontario Superior Court

In this case, the Court affirms these general principles for spousal support in Ontario:

- Unmarried spouses may be entitled to spousal support under the Family Law Act of Ontario, if they have cohabited continuously for not less than three years (section 29)

- After a separation, generally, spousal support entitlement will begin as of when the claim for support is made (which should be in writing, for certainty)

- The test for whether a married or unmarried spouse is entitled to spousal support an on interim basis (including the period following a separation) is whether the claimant can make out, on an interim basis, a prima facie need for spousal support pending the outcome of the case or trial (typically on a non-compensatory basis) – in other words, can he or she satisfy the Court that, when the trial is heard, if necessary, she will likely be determined to be entitled to spousal support?

- If the parties entered a domestic contract before the separation, that is often considered for whether a claimant is entitled to spousal support (i.e., contractual support)

- Generally, the amount of spousal support the Court will order is based on the Spousal Support Advisory Guidelines in Ontario (but they are not the law in Ontario, but rather a guideline oft-utilized by lawyers and the Court to try to assess spousal support amounts) – ultimately, the Court has discretion to determine any amount of interim spousal support, based on the factors in each case

- If the payor earns non-taxable income (i.e., does not pay tax on the income), the Court will typically ‘gross-up’ the payor’s income to calculate spousal support

If you are separating, or may be separated, you should speak to a qualified lawyer about your spousal support position to ensure that you are properly protected and correctly pursue your position, legally. 

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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SWIMMING SAFETY - KEEPING YOUR HEAD ABOVE WATER

The City of Kawartha Lakes is fortunate to have an abundance of natural bodies of water for fishing, boating and swimming.  With sunny days and warm weather, many people also enjoy private and public pools and even fill up the little toddler pools for their children.  However, drowning and near drowning accidents continue to occur.  

 

It’s National Drowning Prevention Week (July 19-25, 2015) and time to take a moment to think about water safety.

 

Drowning is the second leading cause of death for Canadian children. Most deaths of children aged one to four are in home pools, especially when they are not supervised. Drowning can happen quickly and silently.  Children of all ages are at the greatest risk of drowning in rivers, lakes and ponds.  A young child can drown in as little as 2.5 cm (one inch) of water in just seconds.

 

Almost 60 children drown every year and another 140 children are admitted to hospital because they nearly drowned.  Near-drowning can result in long-term health effects - it can affect the way a child thinks, learns and plays.  Added to the human toll, the financial toll of drowning is staggering; in Ontario, the total direct and indirect costs are estimated to be over $30 million per year (see more here).

 

According to the Ontario Drowning Report - 2015 Edition, between 2008 and 2012, 845 drownings occurred in Ontario waters.

 

What are the legal issues related to drownings and near drownings?  Pool owners and caretakers may be liable for injuries or deaths resulting from drowning accidents - they are held to a reasonable standard of care and are required to demonstrate that they have done everything reasonably possible to ensure that a pool is safe.  Homeowners with pools may be liable for a guest’s injuries or death.  Public pools are required to have lifeguards on duty and water depths must be marked.  Failure to supervise minors may lead to liability in the event of an injury or death.  An injured person and their family members may be entitled to make a claim for compensation, including pain and suffering, loss of income and costs of rehabilitation and long-term care.

 

In addition to following safety standards and procedures, ensuring safe equipment and constant supervision, the following are tips to help reduce the risk of child drownings:

- Stay within sight and arms’ reach of your child when in, on or around the water.

- Learn how to swim or have your child supervised by an experienced adult.

- Learn first aid and CPR.

- Young children and weak swimmers must wear lifejackets when in, on or around the water and on a boat.

- If you have a property (house or cottage) that is close to open water, fence off a play area for children that is away from the water.

- Put your child in swimming lessons.

-Teach your children about currents and water safety rules.

Swimming and water play are wonderful recreational and fitness activities for people of all ages.  So get out the bathing suits and sunscreen!  And be safe.

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 - monique@wardlegal.ca  www.wardlegal.ca

 

 

 

 

 

 

 

 

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OVERTIME PAY - THE OFT-OVERLOOKED LIABILITY - NOT ANY MORE

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, 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.

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 Employment Standards Act, 2000).

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 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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HOLD ON - BEFORE TERMINATING AN EMPLOYEE - A CHECKLIST FOR EMPLOYERS

Terminating an employment relationship should not be decided without planning and consideration of potential obligations.

Liability for reasonable notice, or pay in lieu of notice, must be considered. 

Before any employer decides to terminate an employee, here is a checklist that will be helpful to review before a decision is made to terminate an employee.

This checklist will also help employees identify what potential obligations may be owing by the employer if the employee is terminated.   

1.   Review the employee's letter of employment or employment agreement.

2.   Review circumstances of the employee's hire. Was the employee recruited?

3.   Review significant changes in relation to the employee's position, role, salary, location, or other material terms of employment to determine if the substratum of the employment relationship has been amended materially and hence the employment agreement no longer reflects current terms.

4.   Determine the termination date and calculate, if possible, what is owing to the employee for all accrued remuneration to that date, including salary, vacation pay, commission, incentives and bonus, if any.

5.   Is the termination for "just cause" as a result of misconduct? If so, is there a sufficient documentary record of past issues and warnings? Have all of the relevant individuals been interviewed, and is there a record of those interviews? Has the individual been given an opportunity to respond and answer to any issues and allegations?

6.   Compile all relevant codes of conduct or policies applicable to the termination and ensure that the company has complied with its own policies. In addition, where applicable, ensure that the company has evidence that the employee was aware of the policies.

7.   If the termination is for performance reasons, is there sufficient documentation to establish (a) lack of performance, (b) progressive warnings related to failure or refusal to maintain performance at reasonable and objective standards and, (c) the consequences of failing to do so?

8.   Are there related medical issues that need to be considered and accommodated?

9.   Are there other human rights or statutorily-protected employment rights that need to be addressed (for example, return to work following maternity, parental, WSIB or emergency leaves)?

10. If the termination is not for just cause, what is the period of notice of termination required by agreement, by statute or implied by common law?

11. Will the notice period be worked by the employee in whole or part? If payment is to be made in lieu of notice of termination, will remuneration be continued or paid out?

12. Consideration of statutory and contractual obligation to continue benefits during notice periods and any conditions or exceptions to such obligations.

13. Will the termination offer be made subject to mitigation or not subject to mitigation?

14. Review all employee remuneration and specific terms. Are there any specific requirements related to pensions, RRSPs, LTIPs, stock options, etc.?

15. Are there any outstanding loans or advances to the employee?

16. Are there company supplies, documents, confidential information, computers, keys, FOBs, credit cards, automobiles, equipment or other property to be returned by employee?

17. Are there employee obligations post-termination, including solicitation of customers or non-competition?

18. Are there client or competitor lists that need to be identified with reference to non-competition provisions?

19. Determine appropriate timing for the meeting to provide notice of termination. Consider who should be in attendance at that meeting. Is any security necessary?

20. Consider issues relating to employment references and/or provision of confirmation of employment letter. Who will be responsible for post-termination employment references?

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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CAN I DEAL WITH THE CUSTODY OF MY CHILD IN MY WILL? PRE-PLANNING TIPS FOR YOUR MINOR CHILDREN

You can specify testamentary custody for your child in your last will and testament in Ontario.

Under Ontario’s Children’s Law Reform Act (“CLRA”), if you have custody of a child, you can specify in your Will who you wish to have custody if you pass away, but only for a ninety-day period after your passing. The person you appoint must consent to having custody. However, custody of a child is always subject to the decision of the Court. Your wishes in your Will will be considered, but they are not determinative. The “best interests” of your child will always govern. If your child is able to express them, your child’s own wishes and preferences will be considered, too. 

Choosing your appointee is important, of course. You should discuss it with the person you choose, before you appoint them by your Will. The other parent, if applicable, should agree to the choice and, ideally, make a Will consistent with your choice, too, to avoid uncertainty. 

You can also appoint your Estate Trustee in your Will to be responsible for managing your child’s property until your minor child reaches a certain age, such as eighteen.

If you pass away, but you do not have a Will in place, or you do not specify in your Will how your minor child’s property is to be held and managed for your child, the CLRA requires that a “guardian of property” be appointed to do so. This role may be applied for by the other, surviving parent, or by another person (typically other family members or friends).  Generally the Court will give preference to a surviving parent, but that person’s appointment is not automatic. Any application to be a minor child’s “guardian of property” must be given to the Ontario Office of the Children’s Lawyer, too, which is the government agency in Ontario representing the interests of children in judicial custody and access matters, among other things. They can intervene and raise concerns, too, which can create problems, delay and more expense.

If you are a parent, that does not necessarily mean you have the authority manage your child’s property, or be your child’s “guardian of property”. For example, if your minor child receives property by an inheritance, for example, you may not, as a parent, have the right automatically to hold and manage that property for your child.

 

Generally, any person applying to be a minor child’s guardian of property will have to provide evidence to the Court about your ability to manage the property (i.e., your qualifications and experience) and the views and preferences of the child, if they can be determined. Typically the applying person must submit a management plan for the child’s property, which must address where the child will live, the child’s living expenses, discretionary expenses for the child (such as, for example, music lessons, sports expenses and equipment, camps, etc.), the investment plan for any liquid assets and the financial education of the minor child.

Generally, a guardian of property will be required to transfer all of the property to the child when the child reaches the age of eighteen.

Therefore, it is important that you:

1)         make a proper Will;

2)         specify your choice for custody of your minor child(ren) in your Will; and

3)         specify in your Will how your child’s property is to be managed.

If you have a minor child, but no Will, it may mean that someone will need to apply to be the guardian of property for your child, which can be expensive, time-consuming and uncertain. Similarly, if your spouse or partner passes away, you should not assume that you will automatically have the right to manage your minor child’s property – that may not be the case. 

Good planning for your minor children is essential. 

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 FISHING? GET HOOKED ON SAFETY

Summer days are here and the many streams, rivers and lakes in the area provide opportunities for excellent fishing.  The week of July 4-12, 2015 is Canada’s National Fishing Week.  Fishing is a great pastime with friends and family, or for some peace and quiet on your own.  But it is important to remember to follow the law and to be safe at all times when near waterways and while boating.

 

Boating Laws and Regulations:

 

Before you go out fishing in a boat, be aware that there are laws, regulations and local rules covering speed limits, rights of way, use of lights and signals and collisions. Boats need to be registered and licensed. Regulations require anyone operating a power-driven boat to prove they are competent, most often by obtaining the Pleasure Craft Operator Card or taking an accredited boating safety course.  Boating while impaired is an offence under the Criminal Code of Canada and penalties include jail and fines.  A conviction for impaired driving of a boat in Ontario results in the suspension of your driver’s licence, fines and vehicle ignition locking.  Canadian laws require that recreational boats have one properly fitting lifejacket for each person on a boat.

 

Boating and Fishing Safety:

 

According to the Canadian Safe Boating Council and the Lifesaving Society, 80% of recreational boaters who drown each and every year in Canada were not wearing a lifejacket or Personal Floatation Device (PFD).  

 

Transport Canada has provided the following boating safety tips:

- Always wear a lifejacket or PFD (when on a boat and anytime you are on or around deep or fast-moving water, near shoreline or docks)

- Don’t drink alcohol while boating

- Take an accredited Canadian boating course

- Check the forecast for weather and water conditions

- Inspect all your equipment before departure

- Leave a trip / rescue plan with a responsible person

 

Here are some safe practices for wading, shoreline and dock fishing:

- Ensure that children have constant adult supervision

- If you are wading, wade with another person, wear your lifejacket or PFD, know how deep the water is and how strong the current is

- Know how to swim for your own safety - don't swim if there is any doubt about your ability

- Never dive into the water of an unknown area and don't swim in cold water- Look behind you before you cast to make sure your hook will not get caught on a power line, tree or person.

- Don’t leave tackle lying on the ground where someone can step or trip on it.

 

Boating Accidents:

 

In Canada, the Marine Liability Act sets out a maximum entitlement of $1,000,000.00 in compensation from injuries or loss of life resulting from a boat operated with negligence (and more in the case of a boat operated recklessly).  Compensation for expenses and financial losses may also be available.

 

Boating accidents can result in devastating injuries and drownings and can be complex as they may deal with both marine and motor vehicle law.  It is crucial to seek immediate legal advice after getting into a boating accident.

 

Remember to be safe and respect the rules of the waterways.  

 

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 to your circumstances.

More information? We’re here to help - monique@wardlegal.ca   www.wardlegal.ca

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