Monday, February 27, 2017

Top 10 Legal Headlines for the week of February 27, 2017

Here are our Top 10 legal headlines for the week of February 27, 2017 from @wiselaw on Twitter.

For more information on employment law, family law, and wills, estates and estates litigation, visit our website at www.wiselaw.net.

A post shared by Wise Law Office (@wiselaw) on

- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

140Law: Legal Headlines for the week of February 27, 2017

Here are our leading legal headlines for the week of February 27, 2017 from Wise Law on Twitter:


- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Friday, February 24, 2017

Damages Claims for Assault by Parents and Caregivers Upon Children

BY PAUL ADAM, ASSOCIATE LAWYER

A recent parliamentary bill in Ontario, the "Sexual Violence and Harassment Action Plan Act" brought changes to Ontario's Limitations Act, and removed virtually all time limits on bringing court claims arising from sexual assault, or other related offences.

But the law will also have a major impact on people who were assaulted or abused non-sexually as children.

There is now no time limit under the Limitations Act to bring a claim for damages arising from any assault, incluing assault of a non-sexual nature, if at the time of the events:
  1. the person who was assaulted was a minor
  2. the person who committed the assault was in an intimate relationship with the victim
  3. the person who was assaulted was financially, emotionally, physically or otherwise dependent on the person who committed the assault
The Limitations Act also states, for further clarity, that the new extensions on this limitation period is extended to other claims related to the assault, such as "negligence, breach of fiduciary duty or any other duty, or for vicarious liability."

For people who experienced assault(s) as children, this change may allow for claims to also be advanced against a parent or other responsible adult who did not participate in the assault, but had a legal duty to protect the child. 

The Ontario Courts have already found, for instance in the case of RA1 & RA2 v JM et al (Superior Court, 2013) that a so-called "bystander parent" can be liable for failing to protect a child. 

This change in Ontario Law is retroactive. 

It will have large implications for adults who were the victims of assaults or abuse as children, whether the assaults were sexual or not.
- Paul Adam, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Thursday, February 23, 2017

Setting Up or Updating Child Support Online in Ontario

BY RACHEL SPENCE, LAW CLERK

Wouldn’t it be amazing if you could avoid going to Court to update or set up your child support payments?

The Government of Ontario has made that an option for some, by setting up a user-friendly site found here.

It's important to first note who cannot use this process:
  • If either parent or child lives outside of Ontario
  • If any children are over 17.5 years old or married
  • If there is split or shared custody of the child(ren)
  • If the parent/caregiver who currently pays or will pay for child support:
    • is self-employed
    • earns more than $150,000 or less than $10,800 annually
    • earns cash income
    • is a partner or majority shareholder of a business
    • earns most of their income as a landlord or seasonal worker (e.g., employed in snow removal, fishing or landscaping)
What will you require before setting up or updating your child support online?:
  • Social Insurance Number or Temporary Tax Number
  • Current mailing address for the other parent/caregiver
  • Contact information for the person responsible for the payroll at your workplace (if you're the person who currently pays or will pay child support)
  • An electronic copy of your current Court Order or Separation Agreement, or information from your current Notice of Calculation or Recalculation
  • If you did not file your taxes last year, you will also require either:
    • 3 most recent pay stubs, or
    • Your most recent statement of income from employment insurance, social assistance, a pension, workers compensation or disability payments.
What is the process for setting up or updating your child support using this site?
  • There is a non-refundable $80 fee for each parent, each time the service is used (this may be waived if your household is considered low-income, you can note this in your application)
  • You then go to the website and click the blue button "set up or update child support" and from there you will be taken through an array of questions to complete your Application.
  • The Responding party to your Application will be notified by mail once the Application has been submitted and has 25 days to respond.
- Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

LawFact of the Day: Family Law

Here is your daily LawFact from Wise Law for Thursday February 23, 2017. Today we are talking about Family Law.

For more information on Employment Law, Family Law, Wills, Estates, and Estates Litigation, visit our website at www.wiselaw.net.

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Marriage contracts, also known as pre-nuptial agreements, enable spouses to privately determine how issues relating to their property and support will be resolved if they separate in the future.

To ensure the enforceability of a marriage contract, both parties must make full financial disclosure to each other, receive independent legal advice and execute the agreement freely, voluntarily.

- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Wednesday, February 22, 2017

Wrongful Dismissal and Ontario's Employment Law Framework

BY SIMRAN BAKSHI, ASSOCIATE LAWYER

At first glance, Ontario’s employment law framework is deceivingly simple.
If an employer seeks to terminate an employee without having any just cause to do so, it must simply provide that employee with reasonable notice of its intentions to terminate the employment, or alternatively pay the employee in lieu of providing this notice.

Simple enough, right? Well, as your lawyer will be the first to tell you, its not quite that straightforward…
Determining reasonable notice?

As you may have guessed, one of the underlying question in any wrongful dismissal claim is just how much notice is reasonable in the circumstances.

As a general principle, an employee’s entitlement to reasonable notice is based upon, among other things, an assessment of how long it will likely take to find comparable alternate employment. After all, the purpose of providing reasonable notice of a termination is to compensate the employee until he or she is reasonably able to end the financial losses arising from the dismissal, by transitioning into new employment.

In practice, Ontario has a two-tier framework when it comes to determining notice and severance entitlements. An employee's entitlements are determined by both the statutory minimum amounts and the common law requirement of reasonable notice, which can extend far beyond the statutory entitlements.
 
The Ontario Employment Standards Act sets the floor for the minimum notice (or pay in lieu of notice) of termination that an employer must provide an employee with (also known as statutory notice).

(In the case of federally regulated businesses, the Canada Labour Code governs and sets the statutory minimums ) 
Here's the catch: Where there is no employment agreement that clearly and precisely limits the employer's obligations upon termination to the statutory minimums, the employee will in all likelihood have further entitlements, under common law.

A determination of an employee's common law entitlements requires a far more in-depth and contextual analysis of the nature of the employment relationship, the position occupied and duration of service, the employee circumstances and qualifications, and the employee's prospects of finding comparable new employment.

As an example, a senior executive for a specialized technology firm who is nearing sixty, is likely to need considerably more time to find a comparable position of employment, than a youthful, entry-level salesperson.

While each case will turn on its own facts, the benchmark for common law entitlements is often regarded as being three to four weeks of notice per year of service with an employer. This is by no means a hard and fast rule, and will vary (higher or lower) depending on circumstances.

Breaking down Statutory Notice Entitlements:

To add another layer of complexity, employment standards legislation, define entitlements upon termination in two separate categories: (i) Notice of Termination or Termination Pay and (ii) Severance Pay.

We have thus far been discussing notice of termination (or termination pay in lieu of notice).

The ESA further provides that long-term employees, who have worked for an employer for five (5) years or more, should receive additional compensation upon termination in recognition for their years of service, also known as severance pay:

Entitlement to severance pay64. (1) An employer who severs an employment relationship with an employee shall pay severance pay to the employee if the employee was employed by the employer for five years or more and,(a) the severance occurred because of a permanent discontinuance of all or part of the employer’s business at an establishment and the employee is one of 50 or more employees who have their employment relationship severed within a six-month period as a result; or(b) the employer has a payroll of $2.5 million or more.  2000, c. 41, s. 64 (1).


The Various Meanings of Severance:
It is quite common to hear people refer to "severance packages" when discussing how much notice (or pay in lieu) they have been offered by an employer. This term of course refers to the compensation package offered by an employer for having severed the employment relationship. 
It is important to bear in mind however that "severance package" and "severance pay" are two separate concepts, with the latter often being a small part of the former.
Statutory notice entitlements vs. Common law entitlements - Which one applies?
One of the most contentious issues in a wrongful dismissal action will often be whether an employee is limited to receive the minimum statutory requirements of notice, benefits and severance pay, or enjoys common law notice entitlements.
The answer to this question, like many other legal questions is of course, it depends...
Employment law is subject to the principles of bargaining and the rules of contract. 
Accordingly, where the parties to the employment contract, agree in writing prior to the commencement of the employment relationship, that the employer will only be obliged to provide the employee with the minimum statutory entitlements upon termination, this understanding may prevail going forward. 
Typically, an employee can expect to find a such termination clause in a well drafted employment contract, that will attempt to define the employer's obligations upon termination of the employment relationship.
Forum Shopping and The Perils of Picking the Incorrect Forum:
With a two-tiered framework in place, there are also two separate forums in which a claim for employment entitlements may be made.
The Employment Standards Office established by the Ministry of Labour can assist with claims relating to the enforcement of the ESA. Remember, an employee can only seek minimum entitlements that are provided for by the ESA in an employment standards claim. 

Where an employee is seeking  common law entitlements that go beyond the minimums set out in the ESA, he or she should strongly consider proceeding with a civil action before the Courts. 


It is important to weigh the various options carefully when it comes to choosing a forum for an employment law claim.  Once an Employment Standards complaint has been filed, the employee may effectively be barred from commencing further claims in a Court relating to the termination. 


As Section 97(2) of the ESA expressly states:
(2) An employee who files a complaint under this Act alleging an entitlement to termination pay or severance pay may not commence a civil proceeding for wrongful dismissal if the complaint and the proceeding would relate to the same termination or severance of employment.  
ESA claims may be withdrawn if the employee intends to pursue a court action, but this may only be done within two (2) weeks of the date the complaint was filed with the Ministry.

Though our discussion thus far has focused only upon notice entitlements upon termination, it bears noting that wrongful dismissal actions can often involve intricate issues of discrimination that should be factored in when assessing which forum to proceed in. If you are interested in learning more about the Court's rather new jurisdiction to award human rights damages, take a look at our earlier blog post which discusses this in detail.


Top Three Tips for Employees:


1. It is best practice to have a lawyer review your employment contract with you before you sign it so you have a good understanding of the terms you are agreeing to, and its potential implications in the future. This is also your window of opportunity to try to negotiate the terms of your employment if you are in a position to do so;


2. In the unfortunate event that your employment is terminated, don't sign any documents provided by the employer.  Contact a lawyer as soon as possible to discuss what your potential entitlements may be, before you proceed to accept any severance package or sign a release of any kind.
3. While you may have a number of different legal options available to you upon your dismissal, make sure you consult with a lawyer before making a final decision as to which forum you will proceed in. Remember, your claim for entitlements may be significantly curtailed if you proceed in the wrong forum.
Top Three Tips for Employers:
1. It is always a good idea to have template employment documentation prepared and reviewed by a lawyer to ensure that it is compliant with the applicable employment standards legislation. 
2. Make sure that you consult with a lawyer before taking any serious disciplinary action against an employee, including of course a dismissal from employment.
3. Your lawyer can also be an excellent resource when it comes to planning ahead for your business needs. Speak with your counsel early on to prepare for and troubleshoot any potential legal issues that may arise from changes that you intend to implement for your business.
- Simran Bakshi, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

LawFact of the Day: Employment Law

Here is your daily LawFact from Wise Law for Wednesday February 22, 2017. Today we are talking about Employment Law.

For more information on Employment Law, Family Law and Wills, Estates, and Estates Litigation, visit our website at www.wiselaw.net

A post shared by Wise Law Office (@wiselaw) on

Did you know that your Employer has a duty to accommodate your disability up until a point of undue hardship?

An employee is however responsible for requesting the accommodation and providing the employer with adequate information about the nature of his or her request, which often includes producing supporting medical documentation.
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Tuesday, February 21, 2017

Top 10 Legal Headlines

Here are our Top 10 legal headlines for the week of February 21, 2017 from @wiselaw on Twitter.

For more information on employment law, family law, and wills, estates and estates litigation, visit our website at www.wiselaw.net.


- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

140Law: Legal Headlines for the week of February 21, 2017

Here are our leading legal headlines for the week of February 21, 2017 from Wise Law on Twitter:


- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Friday, February 17, 2017

Applying the Bardal Factors


BY GARRY J. WISE AND RACHEL SPENCE

The innovative, former president of CanLii, Colin Lachance, recently acquired the iconic Maritime Law Book, and it appears that he is well on his way to continuing to revolutionize Canada's legal information, publication and research industries.

He recently launched "Bardal Factors," a beta version of a possible, future service aimed at taking some of the guess work out of applying the factors that determine reasonable notice in Canadian employment law cases.

The site works by asking users the age and length of employment of the employee.  The user then submits the information and the site returns links to sample court rulings that utilized similar factors, such as age, position and length of employment in their decisions.

If its development continues, this prototype will become a great tool that employees, employers and employment law professionals can use to obtain quick "comparables" to guide in the assessment of notice entitlements.

According to Colin, in its future iterations, the site would draw from a much larger database of court decisions, increase the depth of employee-related fields and factors to be considered, and organize its output geographically, by province.

We give this concept a thumbs up!

Keep it going, Colin.  
- Garry J. Wise and Rachel Spence

Visit our Toronto Law Office website: www.wiselaw.net

Thursday, February 16, 2017

LawFact of the Day: Wills and Estates

Here is your daily LawFact from Wise Law for Thursday February 16, 2017. Today we are talking about Wills and Estates.

For more information on Employment Law, Family Law, and Wills, Estates, and Estates Litigation, visit our website at www.wiselaw.net

A post shared by Wise Law Office (@wiselaw) on

For an Ontario will to be valid, it must be signed by the person making the will and be witnessed by two people who are not beneficiaries under the will.

A holograph will is an exception to these formal requirements. Holograph wills must be made entirely in the handwriting of the testator. No witnesses are required for a holograph will.
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net