- Wise Law Blog: Section 46.1 of the Ontario Human Rights Code: Civil Remedies for Human Rights Claims
- Wise Law Blog: The Post-Secondary "Child:' Guidelines Need not Apply
- Ontario raising minimum wage to $11 an hour
- Foul-mouthed Facebook tirade costs Newfoundland worker her job
- Lev Tahor: Raids may have sought evidence of child marriages
- Rob Ford defends Justin Bieber as pop star hires the lawyer of mayor’s alleged drug dealing pal
- Legal pendulum swings toward workers - The Globe and Mail
- UK "vagrants" charged after taking food from garbage bins
- What Will Tomorrow’s Lawyers Do?
- Contract jurisdiction must be spelled out, court rules
- Top Maine court says transgender 5th-grader must be allowed to use restroom of choice
- Heenan Blaikie’s future in doubt, fate expected to be announced Monday
- Conservative website Free Dominion shuttered after libel ruling
- CSEC used airport Wi-Fi to track Canadian travellers: Edward Snowden documents - CBC News
- Warrantless wiretapping has managed to duck significant US judicial review. Until now.
- Yahoo reports email accounts breaches through stolen passwords
- Queen Elizabeth II’s representative in New Zealand supports debate on abandoning Union Jack
- Alabama no longer feeling sheepish about their lack of bestiality laws
- BigLaw partner offers advice on how to best train new lawyers
- Wise Law Blog: Counsel: Your Crystal Ball is Busted
- Wise Law Blog: Restrictive Covenants - Unbreakable Shackle or Unenforceable Nuisance?
Friday, January 31, 2014
BY SIMRAN BAKSHI, STUDENT-AT-LAW, WISE LAW OFFICE
The enactment of section 46.1 of the
However, though the provision has now been in force for more than five years, damages have been awarded for discrimination in only one, rather recent case. Far from opening the floodgates of human rights litigation in civil proceedings, plaintiffs appear to be resorting to s.46.1 of the Code rather cautiously. A review of Ontario’s human rights system revealed that as of 2012 there had been only 19 reported cases in total which addressed human rights within a civil action, of which 14 cases specifically relied upon s.46.1 of the Code. None of these cases rendered a finding of discrimination.
- The status of a human rights claim if the accompanying civil cause of action is dismissed;
- Whether the Court will award damages for discrimination if s.46.1 has not been expressly pleaded;
- How the Court will exercise its jurisdiction to award non-monetary restitution (i.e. reinstatement; systemic remedies etc.)?
- The range and quantum of damages the Court may award for discrimination;
- Whether the limitation period for bringing human rights claims pursuant to s.46.1 will extend to two years, given that it accompanies a civil cause of action?
While this requirement is straightforward in itself, questions emerge as to what the status of a human rights claim becomes if the underlying civil cause of action is dismissed. Case law suggests that where a civil cause of action is struck down prior to trial, the accompanying human rights claim cannot survive on its own.
What is interesting however is that if a human rights application is commenced at the Tribunal prior to any decisions being rendered on a motion to dismiss a civil claim (recall that this may often occur as the limitation period for bringing an application pursuant to the Code is only one year), the application may be barred pursuant to s. 34(11) of the Code.
As a result, an individual may be left with no remedy for an alleged human rights violation purely on procedural grounds. In the case of Aba-Alkhail v
 With respect to the applicant’s argument that he would be left with no human rights redress if both the civil suit and the Application are dismissed, I note that the Divisional Court recently emphasized that even in those circumstances section 34(11) is not discretionary and bars an application from proceeding: Grogan v. Toronto District School Board, 2012 ONSC 319. The Tribunal does not have jurisdiction and, to paraphrase the Divisional Court, it does not matter that the civil action could be withdrawn or dismissed. “In short, s.34(11) requires an applicant to choose between the Tribunal and a (concurrent) civil action”: see para. 48…There has yet to be a case in which damages have been awarded for a human rights claim, notwithstanding that the accompanying civil cause of action has been dismissed at trial. Presumably, given the framing of s.46.1, a human rights claim can still succeed as a separate cause of action. The Court affirms this position (although somewhat in obiter) in the case of Mykki Cavic v Costco WholesaleCanada Limited, 2012 ONSC 5307:
 The defendant has argued that in the event that I dismiss the plaintiff's claim for wrongful dismissal, I need not determine the issue of breach of the Human Rights Code. It is the position of the plaintiff that this is part of the claim and must be determined. I treat this claim as separate from the wrongful dismissal claim and will deal with the issue below.
Pleading the Code:
Some Guidance –
v Solis Mexican Foods Wilson
 First in this case, the plaintiff lost “the right to be free from discrimination” and experienced “victimization”. Second, the defendant’s breach of the statute is serious. The defendant orchestrated the dismissal and was disingenuous at various times both before and during termination.
BY ANA KRALJEVIC, LAWYER, WISE LAW OFFICE
Once a child reaches his or her eighteenth birthday, the age of majority, the question of whether that child is entitled to support becomes highly fact-driven and contextual.
Once a child attains the age of majority, the child is no longer presumptively entitled to support. The onus falls on the applicant [in this case the mother] to prove that an adult child who is pursuing post-secondary education is entitled to support...
The child of two spouses or former spouses who, at the material time,
(a) is under the age of majority and who has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.
AMOUNT OF CHILD SUPPORT
Child the age of majority or over
3(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is
(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or
(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
Step 1: Determine whether the child is a "child of the marriage" as defined in the Divorce Act.
Step 2: Determine whether the approach of applying the Guidelines as if the child were under the age of majority is challenged. If it is not challenged, determine the amount payable based on the usual "Guidelines" approach.
Step 3: If the usual Guidelines approach is challenged, decide whether the challenger has proven that the usual Guidelines approach is inappropriate. If not challenged, the usual Guidelines amount applies.
Step 4: If the usual Guidelines approach is inappropriate, it is necessary to decide what amount is appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
The costs of attending university in another city are significantly greater than attending university while living at home. In addition, Matthew does not have a job or a significant income.
- Ana Kraljevic, Toronto
Thursday, January 30, 2014
Today at SlawTips, I look at research that tells us lawyers' predictive abilities could use a bit of work:
The take-away from this research is that legal professionals appear to tend toward optimistic, but unrealistic bias in favour of our own clients’ positions. We should thus exercise caution in assessing – and relying on – our own predictive abilities.
Our early impressions about the merits of our clients’ claims may be coloured by the professional blind spots identified in this research. We may also be swayed by our natural empathy for our clients or by incomplete information on opposing parties’ positions that may be available at early stages.
In short, we should manage our own expectations about results – and the client expectations they generate – with extreme care.
Which brings us to today’s Practice Tip:
Before predicting outcomes, take a closer look. Reality checking ought to start with us, not with pre-trial judges, months or years after the fact.
Counsel, Your Crystal Ball Is Busted… : My post today @SlawTips http://t.co/01vcYxILwg via @wiselaw
— Garry J. Wise (@wiselaw) January 30, 2014
The start of one's employment relationship is akin to the honeymoon period of a marriage. However, when things go sour, the resulting "divorce" can become acrimonious. For employees, the dissolution of the employment relationship is especially difficult if an employer relies upon restrictive covenants in the employment contract that restrict the employee's future employment prospects.
What are Restrictive Covenants?
Restrictive covenants in the employment context can generally be divided into the following two categories:
- Non-Solicitation Clauses: A clause in an employment contract that prohibits a departing employee from soliciting customer of his/her former employer.
- Non-Compete Clauses: A clause in an employment contract that attempts to keep former employees out of a business. These types of clauses are generally unenforceable on public policy grounds as courts have generally found that the society has an interest in every individual carrying his/her trade freely. Courts generally do not enforce a non-compete clause if non-solicitation clauses adequately protect the employer's interest.
On the one hand, an employer may have a legitimate interest in protecting it's trade secrets, confidential information and trade connections. On the other hand, the imbalance of bargaining power between an employer and employee may lead to the inclusion of a restraint of trade which was not negotiated "freely."
Accordingly, blanket restraints on freedom to compete are generally held unenforceable in Canada. Non-solicitation agreements, which preclude contact with and solicitation of the former employer's customers, are more likely to be upheld, however,if they are reasonable in scope and duration.
In Elsley v. J.G. Collins Ins. Agencies, the Supreme Court of Canada articulated the following four-part test to determine whether a post-employment contractual restraint could be enforced:
- Does the employer have a proprietary interest entitled to protection?
- Are the temporal and geographical restrictions too broad?
- Are the terms of the restraint clear, certain and unambiguous?
- Is the restraint reasonable in terms of public interest?
Restrictive covenants will be more rigidly enforced if the context is a commercial agreement. They are somewhat less likely to be enforceable if the relationship between the parties is one of employer-employee.
However, what if the contract governing the employment relationship is set out in a commercial contract for the sale of assets? Although Canadian jurisprudence on the topic of "restraint of trade" is extensive, the Supreme Court of Canada's decision in Payette v. Guay Inc. last year provides clarity on the enforceability of a "restrictive covenant linked to a commercial agreement from the scope of one linked to a contract of employment (Payette,, para 5)."
Such was the problem associated with Mr. Yannick Payette's employment. Upon selling his crane rental business to Guay Inc. and in an effort to "ensure a smooth transition in operations following the sale" (Payette, para 12), Mr. Payette was employed as a consultant for a six month period. The agreement of sale provided that Mr. Payette was bound by a non-competition and non-solicitation clause. At the end of the six month transitional period, the parties agreed on a new "contract of employment for a fixed term that was optional and separate ...[that was further] renewed beyond that date for an indeterminate term (Payette, para 13)."
At the termination of his employment, Mr. Payette began a new job as a operations manager at company that was a direct competitor of his former employer. Legal proceedings were commenced with Guay Inc. alleging Mr. Payette breached the restrictive covenant embedded in the commercial agreement, while Mr. Payette argued the restraint of trade imposed by his former employer was unreasonable and unenforceable.
Freedom of Contract versus Freedom to Contract
In rejecting Mr. Payette's argument, the Supreme Court of Canada held that the restrictive covenant in this case was made in a commercial context and was lawfully enforceable. The mere fact that these clauses appeared in a hybrid agreement did not "negate the foundations and rationale" for their inclusion in the commercial contract - being the protection of the assets acquired by Guay Inc. Accordingly, the primary purpose of these covenants was to govern the sale of business rather than govern Mr. Payette's post-sale service as a consultant.
Here are a list of factors the Court considered in coming to this conclusion:
- Wording of the Contract: "actual language of the parties' agreement confirms that the existence of the restrictive covenants is closely related to the conditions for the sale of the assets, which were negotiated and accepted by the appellant Payette as a 'vendor', not as an 'employee' (Payette, para 47)."
- Context of the Agreement: "the main point of the sale transaction for the respondent was to acquire the vendors' goodwill, skilled employees and customers. If the respondent had not obtained the protection in question, the transaction would never have taken place (Payette, para 49)."
- Lack of Power Imbalance: "the October 2004 agreement, which had a substantial value of $26 million, was entered into following lengthy negotiations between well-informed businesspeople who were on equal terms and were being advised by legal and accounting professionals (Payette, para 62)."
- Counsel, Your Crystal Ball Is Busted...
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- Justice Department investigating Target security breach
- Rob Ford being sued after alleged jailhouse assault - Toronto | Globalnews.ca
Wednesday, January 29, 2014
- Tips Tuesday
- Woman lost in system serves 154 days instead of 48 hours; prosecutor filed motion to get her out
- Neo-Nazi estate dispute could open 'Pandora's box,' lawyer warns - New Brunswick - CBC News
- Prostitution laws cause struggle for prosecutors
- The Supreme Court of Canada’s Decision in Hryniak: Courts Must Change
- New human rights decision provides guidance on frustration of employment contract
- Canada needs more oversight of spy agencies: Privacy watchdog
- US Supreme Court orders stay of execution for inmate Smulls; lawyer says it's temporary
- Prince sues 22 fans for $1 million each for linking to bootlegs
- Police Banned From Enforcing Traffic Laws In Oklahoma Town Over Traffic Tickets For Money
- European Court of Human Right finds Ireland liable for sexual abuse in Catholic school
- Juror gets 6 months in contempt case over mistrial, was no ‘benign Mr. Magoo,’ judge says
Tuesday, January 28, 2014
- Prince Is Suing His Facebook Fans For $22 Million - Business Insider
- Quentin Tarantino sues Gawker over leaked movie script
- Accommodation only triggered upon full disclosure of disability
- NSA using 'leaky apps' like Angry Birds to gather data, documents show
- Florida Supreme Court clears medical marijuana ballot measure
- Minimum wage climbs to $11 in Ontario: Cohn
- Could Justin Bieber be deported?
Monday, January 27, 2014
- Brain-dead pregnant Marlise Munoz removed from life support, body released to husband
- Protecting Yourself From Cybercrime: Be Careful About Putting Your Law Firm Data in the Cloud
- Judges' prelim army advice on Marc Nadon Supreme Court appointment cost $11K - CBC News
- Mandatory minimum gun sentences battled in Toronto courts
- Marlise Munoz's life support removal order mulled by hospital - World - CBC News
- Facebook Inc destroys Princeton study saying it will lose 80% of its users over the next 3 years
- Courtney Love wins Twitter libel trial against former lawyer
- British judge rules Google can be sued under local law in breach of privacy case
- Georgia mayor takes her own city council to court after getting kicked out of meetings
- Oklahoma Republican’s bill would block same-sex marriage by stopping ALL marriages
- 'Revenge Porn King' out on bail
- UK woman claims negligence - lawyers should have told her divorce would end her marriage
- Judge tosses libel counterclaim against legal secretary who criticized former firm before suing
Friday, January 24, 2014
- Pakistan court sentences British man to death for blasphemy
- Supreme Court dismisses request for an appeal by ‘vexatious’ litigant
- ‘Revenge porn’ purveyor Hunter Moore indicted by FBI
- Five Law Schools Cutting Tuition
- Don’t want to be hassled by creationist teacher? Give up Buddhism, Louisiana public school says
- Federal judge rules Samsung infringed on Apple's patented word recommendation technology
- Supreme Court of Canada summary judgment ruling: Bruno Appliance and Furniture, Inc. v. Hryniak
- Supreme Court of Canada eases path for Ontario summary judgment motions
- Panel: NSA data program illegal
- Resume lies lead to disbarment for former Paul Hastings partner
- Javad Heydary: Judge could seek to quell death doubts | Toronto Star
- Man behind the Chris Christie probe: U.S. Attorney Paul Fishman leads federal inquiry
- CBA Futures Chat: The Future of Lawyer Employment
- Justin Bieber arrested, accused of drag racing, DUI: Miami Beach police
- Study: Facebook to Lose 80 Percent of Users, Become the Next MySpace - PC Magazine
- Looking for the Gems: Overcoming Bias in Law Firm Recruitment
- Canadian employment claims: global employers can challenge jurisdiction - Lexology
- Virginia Won’t Defend Gay Marriage Ban
- The political steamroller that is Quebec's charter of values
- Hacker’s Guide to Being More Productive
Thursday, January 23, 2014
- Stolen laptop contained health records of 620,000 Albertans
- Toronto 'Robin Hood doctor' Roland Wong has licence suspended
- US Supreme Court Justices Seem Stumped on Calculating Damages Over Child Pornography - NYTimes
- Kansas man who responded to Craigslist ad for a sperm donor is a dad, must pay child support.
- York police shouldn’t videotape detainees using toilet: Justice
- Same-sex couples sue to overturn Florida marriage ban
- Federal appeals court rules juror exclusion for sexual orientation unconstitutional
- Ontario recruits Paul Martin to help with provincial pension plan
- B.C. lawyer disbarred for bilking legal aid
- Judge mulls retrial in case of 14-year-old black youth tried and executed in 1944
- Toronto principal who's black alleges ‘systemic discrimination’ in human rights code claim
- Survey: Small Firm Lawyers Warming Up to Cloud, But Security Still a Concern
- California state court upholds mother's right to spank daughter
Wednesday, January 22, 2014
- Toronto Mayor Rob Ford caught drunk in bizarre late-night video
- Rob Ford’s actions in new restaurant video called ‘offensive’ and ‘despicable’
- Help! I have a terrible workplace investigation report on my desk - Lexology
- Former Toronto Humane Society chief veterinarian resigns licence
- LSUC Paralegal bencher election candidates - list
- Police should need warrant to search cellphones after arrest, B.C. Supreme Court hears
- Pennsylvania Lawyer Scammed By Nigerian Email
- More Tasers needed, Toronto police chief tells shooting inquest
- US Federal judge sent hundreds of inappropriate emails before racist-joke probe, opinion says
- Javad Heydary's death not ‘100 per cent’ verified
- Conrad Black owes taxes on $5.1-million, court says
- Obama on Pot Legalization: 'It's Important for It to Go Forward'
- Lawyer accused of revealing TMI in response to bad online review is reprimanded
- N.S. liquor agency to warn staff about convicted drunk driver
Tuesday, January 21, 2014
- Rights Group Assails Inaction on Syria
- Are There Non-Economic Reasons to Go to Law School?
- praticePRO’s Top Downloads of 2013
- Court rules commission must be paid | REM | Real Estate Magazine
- Doubt over lawyer Heydary's death lingers as Mississauga couple fights to recover $3 million
- Legal ‘disappearing act’ extends Beatles’ copyright protection for Bootleg album
- York University conflict courts Quebec-style backlash: Cohn
- Why are lawyers killing themselves?
- Federal judge rules North Carolina abortion ultrasound law is unconstitutional
- US Juveniles Still Facing Lifelong Terms Despite Rulings
- Dissension up in 2013 SCC rulings
- NetNewsledger.com - Ontario Government Appeals Ontario Wind Decision
- This week at the SCC
- Hundreds of children with social services ties died in Sask.
- Garth Drabinsky granted full parole
- Peter MacKay rules out legalization, municipal regulation of prostitution
- Javad Heydary’s final legal hurrah: Supreme Court to rule on summary judgment cases on Thursday
- Prov. law societies question the Federation of Law Societies' approval of Christian U Law School
- Citizen, CBC fight proposed publication ban for terrorism trial
- Supreme Court of Canada won’t hear Hells Angels’ strip club case
- You Don’t Have to Be Jewish to Love a Kosher Prison Meal
Monday, January 20, 2014
- Driver ticketed for Google Glass acquitted, but ‘the fun is just starting,’ legal expert says
- Quebec Charter of Values Receives Further Critique by Legal and Political Organizations
- Lawyers have 4th highest suicide rate among professions
- Obama: Pot is ‘a bad habit’ that is no ‘more dangerous than alcohol’
- Hackers use ‘smart’ refrigerator to send 750,000 virus-laced emails
- Investigators: Montana judge’s racist Obama email just one of hundreds
- Supreme Court of Canada clarifies standard for warrantless police searches
- Microsoft should just rename Windows XP as Windows 9
- IKEA monkey's 'mom' ordered to pay $83,000 in legal costs
- Omar Khadr to be moved to medium-security prison in Alberta: lawyer
- Scholar Wins Landmark Court Battle to Purge Name From U.S. No-Fly List