Wednesday, December 25, 2013

Merry Christmas from Wise Law

A Merry Christmas to readers, colleagues and clients from all of us at Wise Law Office.

We will be taking our usual seasonal hiatus.   Our office will be closed until January 2nd and our daily 140 Law postings on Wise Law Blog will also resume in the new year.

I might drop in to write the occasional blog post over the break as well, if I am inclined.  And of course, there will be Clawbie nominations later in the week...

- Garry J. Wise, Toronto
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Monday, December 23, 2013

140 Law - Legal Headlines for Monday, December 23, 2013

Here are the leading legal headlines from Wise Law on Twitter for Monday, December 23, 2013:

- Elysia Cherry, Legal Assistant 
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Friday, December 20, 2013

140 Law - Legal Headlines for Friday, December 20, 2013

Here are the leading legal headlines from Wise Law on Twitter for Friday, December 20, 2013:
- Rachel Spence, Law Clerk

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Thursday, December 19, 2013

140 Law - Legal Headlines for Thursday, December 19, 2013

Here are the leading legal headlines from Wise Law on Twitter for Thursday, December 19, 2013:
- Rachel Spence, Law Clerk

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Tuesday, December 17, 2013

140 Law - Legal Headlines for Tuesday, December 17, 2013

Here are the leading legal headlines from Wise Law on Twitter for Tuesday, December 17, 2013:
- Rachel Spence, Law Clerk

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Monday, December 16, 2013

140 Law - Legal Headlines for Monday, December 16, 2013

Here are the leading legal headlines from Wise Law on Twitter for Monday, December 16, 2013:
-Rachel Spence, Law Clerk

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Friday, December 13, 2013

140 Law - Legal Headlines for Friday, December 13, 2013

Here are the leading legal headlines from Wise Law on Twitter for Friday, December 13, 2013:
- Rachel Spence, Law Clerk

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Human Nature?

Is it just an oddity of human nature that we can get so much done when we have absolutely no time, while having so little relative productivity when we have spare time on our hands?

- Garry J. Wise, Toronto
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Thursday, December 12, 2013

140 Law - Legal Headlines for Thursday, December 12, 2013

Here are the leading legal headlines from Wise Law on Twitter for Thursday, December 12, 2013:
- Elysia Cherry, Legal Assistant
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Wednesday, December 11, 2013

Dispelling Unjustified Fears - The Record of Employment (ROE)

The end of an employment relationship is rarely a pleasant experience for anyone involved. Particularly for a dismissed employee, heightened emotions and confusion can lead to genuine anxiety and stress.

In the midst of all of this turmoil, an employer issues a Record of Employment (ROE) to the employee.

An ROE is a form an employer is required to issue each time an employee experiences an interruption of earnings (Service Canada). The form lists information such as an employee's name, address, Social Insurance Number, the first day of employment, the last day for which the employee was paid and the reason for the issuance of the ROE.

The issuance of the ROE is often disconcerting for employees who have been dismissed for cause (often listed as "Code M" under Block 16 of the ROE).  This blog post will attempt to address three of the most common questions about the Record of Employment that I am asked by employees that have been dismissed for cause.

Will my ROE be disclosed to my new employer?

According to section 19 of the Employment Insurance Regulations SOR/96-332an employer must issue an ROE to the former employee and Service Canada.  A copy must be retained for the employer's own records for a period of six (6) years

The stigma attached to a dismissal where cause has been alleged often clouds the purpose of an ROE - which is used to determine whether an employee is eligible to receive Employment Insurance benefits. Only the former employee, the employer and Service Canada are privy to the information contained in a ROE. No one else is entitled to the disclosure of one's ROE. 

Will I qualify for Employment Insurance if my ROE states "Dismissal"?

Pursuant to section 33(1) of the Employment Insurance Act, "a claimant is not entitled to receive benefits if the claimant loses an employment because of misconduct or voluntarily leaves without just cause."

A notation of "Dismissal" on an ROE will therefore generally trigger an investigation by Employment and Social Development Canada (formerly Human Resources Development Canada) as to the circumstances of the dismissal. Unless there is a finding of genuine, objective misconduct, however, Employment Insurance benefits will not typically be denied. Similarly, where an employee has been constructively dismissed or has resigned for lawful reasons relating to the employer's misconduct, Employment Insurance benefits may still be allowed.

Where Employment Insurance benefits are denied, a claimant can appeal by requesting that the Social Security Tribunal reconsider Service Canada's decision. A formal request for reconsideration must be made within 30 days from the date the original decision was communicated to the claimant.

Will the ROE be submitted to the police or other government authority?

The ROE is not submitted to the police. 

The involvement of police could conceivably occur where employment has been terminated due to theft, fraud, drugs in the workplace or assault.

This, however, does not mean that police involvement is a given. 

If a criminal investigation is pending, however, the authorities may be able to access all employment-related documentation, generally with the employer's consent.
- Nitin Pardal, Toronto
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140 Law - Legal Headlines for Wednesday, December 11, 2013

Here are the leading legal headlines from Wise Law on Twitter for Wednesday, December 11, 2013:
- Rachel Spence, Law Clerk

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Tuesday, December 10, 2013

140 Law - Legal Headlines for Tuesday, December 10, 2013

Here are the leading legal headlines from Wise Law on Twitter for Tuesday, December 10, 2013:
-Rachel Spence, Law Clerk

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Monday, December 09, 2013

Real and Substantial Connection - Forum Conveniens in Family Law

Knowles v. Lindstrom, 2013 CarswellOnt 6935 (Ont. S.C.J.) is a recent family law case that addressed the issue of forum conveniens in a property dispute.  This case has significant implications for Canadian residents who have common law relationships with residents in any of the American states.

The Applicant and Respondent had a 10-year common law relationship in which they resided together in both Ontario and Florida.  The Applicant’s claim was for spousal support and a trust interest in Ontario land to which the Respondent held title. 

The Applicant’s position was that they cohabited in Ontario and Florida more or less equally.  Alternatively, the Respondent took the position that the majority of their time was spent in Florida.  He contended that he was not a Canadian citizen and refused to acknowledge a real and substantial connection to Ontario. 

Thus, this case turned on a determination of the facts – did the Respondent have a real and substantial connection to Ontario?

Justice Perkins unhesitatingly found that Ontario law was applicable and that the Ontario courts should exercise jurisdiction over this case.  He found support for this conclusion in in Van Breda v. Village Resorts Ltd., 2012 CarswellOnt 4268 (S.C.C.).  This case stands as the authority for when a court should exercise jurisdiction over an out of province party based on a set of presumptive factors. 

The judge found that there was nothing to preclude the Respondent from having two homes and therefore a real and substantial connection with more than one place.  Indeed, the totality of the evidence indicated that the Respondent, as an individual who owned land in Ontario and spent three to five months at a time residing there, could not realistically deny a real and substantial connection. 

Once the court finds a real and substantial connection and the jurisdiction is accordingly established, the litigation proceeds before the court seized of the claim.  The court will not decline to hear the matter unless the defendant invokes forum conveniens – a discretionary right reserved only for the parties involved. 

Thus, if a defendant raises an issue of forum non conveniens, the burden lies on him or her to demonstrate why the court should remove itself as the forum chosen by the plaintiff.  In order to succeed, the defendant must show why it is appropriate for an alternative forum to exercise jurisdiction using the analytical framework that the court follows to find the existence of a real and substantial connection.

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The "Simple" Will: Not Always So Simple…

Drafting a simple, uncomplicated will may appear to be a routine task for most legal practitioners in comparison to “flashier” legal matters like messy divorces and high stakes litigation.  

That being said, when a lawyer is called upon to draft a will, he or she must keep in mind that his or her responsibilities encompass an array of interests and issues that may not be initially apparent. As a result, the lawyer will be required to make appropriate inquiries, engage in fact finding, and generally appraise the situation from an informed standpoint.

A lawyer who is drafting a will must take necessary steps to ensure all of the following:
  1. The testator has testamentary capacity;
  2. The testator's expressed wishes are voluntary and informed, and not the result of undue influence or duress imposed by others;
  3. The testator has provided a thorough and accurate inventory of his or her property accompanied by documentation that confirms the client’s authority or ability to dispose of any of the property;
  4. The testator is cognizant of relevant income tax issues and other issues or limitations that may encumber his or her proposed scheme of distribution;
  5.  The testator understands and approves of the contents of the will.
The first requirement – that the client has testamentary capacity – presents many pitfalls and ambiguities.  How can a lawyer know whether a client is has the soundness of mind to deal with estate planning and the testamentary distribution of his or her property? 

The short answer is that, particularly where issues present, the lawyer ought to maintain regular communication with the client in order to be able to assess consistency and testamentary capacity.  

Such communications will also assist in discerning whether any undue influence or duress is affecting the testator’s will.  In the process of drafting the will, a lawyer should ensure that his or her notes are complete, with information to support conclusions in respect of testamentary capacity and the absence of undue influence or duress.

While the lawyer’s assessment of testamentary capacity may be informed by clinicians, including the opinions of physicians and psychologists, testamentary capacity is a legal concept that is ultimately determined by the court. It has been suggested that an assessment of testamentary capacity that is contemporaneous with the execution of the will is the best defence to a potential will challenge.

The test for testamentary capacity was restated in Royal Trust Corp. of Canada v. Saunders, [2006] O.J. No. 2291 (S.C.). According to Justice Blishen, testamentary capacity is established where the testator:

(1)    understands the nature and effect of the will; (2) recollects the nature and extent of his property; (3) understands the extent of what he is giving under the will; (4) remembers the people he might be expected to benefit under his will; and (5) understands the nature of the claims that may be made by persons he is excluding under the will.

A lawyer has a challenge ahead of him or her when the client is lucid at one moment and then appears confused at the next.  What if the client clearly has a drinking problem?  This was the issue in the case of Lata v. Rush, 2012 ONSC 4543 (CanLII). In that case, the will was ultimately upheld despite the testator being referenced in one medical report as a “grossly inadequate personality who has been engaged in heavy drinking of vodka for the last 13 years.”  

Justice Hainey buttressed his decision by stating that there was no evidence that the testator was incompetent or suffered from mental disorders at the time that she executed her new will.  Thus, even a “habitual drunkard” may execute a valid will if she possesses a sound, disposing mind and has the wherewithal to recall the extent or her property and the nature of the claims to which she ought to give effect.  

Alternatively, if the testator shows signs of failing health and diseases of serious cognitive impairment, such as Alzheimer’s or dementia, the courts take a very close look at capacity issues.  The existence of suspicious circumstances automatically rebuts the presumption of capacity with the corollary being that the propounder of a will bears the onus of proving testamentary capacity.  

Hutchison v. Hutchison 2006 CanLII 27233 (ON SC) illustrates this point. The plaintiffs in this case included three of the deceased’s four children who challenged the newest will of the deceased bequeathing the whole of his estate to his youngest son.  The defendants were the youngest child and his wife.  The deceased’s prior will divided his estate equally among his four children. 

The court carefully weighed the evidence in respect of the deceased’s capacity.  At one point, the deceased was found in his car in a state of disorientation while parked on a railroad track.  He moved in with his youngest son shortly after being diagnosed with dementia where he lived under the son 's care until his death. 

The court found that there was sufficient evidence to doubt the deceased’s capacity to create a new will on the basis of his deteriorating health and dependency on the defendants. Accordingly, the onus shifted to the defendants to prove the deceased’s capacity on a balance of probabilities. Ultimately, the court found that the defendants had failed to prove that the deceased had testamentary capacity when he gave instructions for his new will.

Lawyers in such circumstances should make the appropriate inquiries to determine whether the testator was in a position of dependency or otherwise in an especially vulnerable state.  It is also adviseable to procure the expert opinion of health practitioners in light of the serious cognitive impairments that manifest in cases of dementia.  

While this certainly entails extra steps, it is absolutely vital that the lawyer discharge this duty when dealing with elderly clients in order to ensure that the will reflects only true testamentary wishes.

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Things I Learned in My First Months of Articling (that I could never have learned in law school)

In the days leading up to the beginning of my articles, I was surprised at how little I could do to prepare myself for what has thus far been the most significant experience in my legal career. While law school certainly prepares you with the technical knowledge you will rely upon constantly during your articles, reciting the legal principles you have learnt in class will sadly not be of much use during your first few days of working at a law firm. 

Rather the two things I learned during my first month of articling are as follows:

Finding your professional self:

At the risk of sounding incredibly cliché, one of the most significant takeaways thus far in my articling term has been gaining a better understanding of who I am as a professional. I use of the term “professional” as oppose to “lawyer” or “advocate” because quite frankly, as an articling student early in the term, the first step has been to further hone in on my skills as a competent professional.

The simplest tasks, whether chasing down paper in court, making a phone call to opposing counsel or even just interacting with clients have felt like major victories and have been extremely telling as to what my approach to work and style of advocacy will be.

For example, as a soft-spoken person far from the stereotypical assertive, hard-hitting lawyer, I was surprised to learn from my experience in engaging in settlement discussions that I could be a rather aggressive negotiator. Simply learning how you conduct yourself in a professional setting, and recognizing your strengths and weaknesses can be extremely helpful in gaining confidence in your abilities as a future lawyer.

Learning to “hit the ground running”:

If I had a penny for every time I heard the phrase “hitting the ground running” to describe the experience of articling at a law firm, I would probably be able to retire before even beginning my legal career.

Ironically, as often as I would hear about it, I don’t think I truly understood what it meant, until I experienced it for myself.

While law school certainly provides you with the skills to manage your time well, and to cope with mounting pressure, it is far too structured to adequately prepare you for the element of surprise that comes with entering the “real world”.

A file that at first glance seems simple and straightforward can morph into a difficult and challenging one, simply because of an issue about the disclosure of a single document.  By the same token, a file you have worked on for weeks can suddenly disappear and reappear from your task list without any real warning.

Having reached the midway mark of my articles, I have come to define “hitting the ground running” as managing your workload within the realities of legal practice - and handling the surprises you will inevitably encounter - to develop as a professional.

- Simran Bakshi, Student-at-Law, Toronto

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140 Law - Legal Headlines for Monday, December 9, 2013

Here are the leading legal headlines from Wise Law on Twitter for Monday, December 9th, 2013:

- Rachel Spence, Law Clerk

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