Wednesday, November 30, 2016

Recognizing Foreign Divorces in Canada

BY PAUL B. ADAM, ASSOCIATE LAWYER

 If you were divorced in a foreign country, and now plan to marry in Canada, beware.

 Not all divorces are created equal.

 For a foreign divorce to be validated in Canada, it needs to have been granted according to the law of that country, by a court of that country with the power to grant a divorce. There is such a wide range of divorce laws and courts around the globe. Some are consistent with this country's legal principles and others are not.

 According to Canadian law, if a couple has been divorced in a foreign country, they must provide proof that the foreign divorce they obtained was valid in order to remarry in this province.

 The only proof that the Canadian government will accept is an opinion letter from a lawyer.

 THE OPINION LETTER

 Why is a lawyer's opinion necessary? Due to the wide range of family law systems throughout the world, the government relies on the legal profession to scrutinize foreign divorce orders and ensure they were obtained properly, by Canadian standards.

 This opinion letter is not a rubber stamp exercise, either. Lawyers should be carefully reviewing the foreign law, original documents from the clients, with translations if necessary, and facts about the separation and divorce. They are required to give a well-considered opinion that is supported by facts.

 WHEN WILL A DIVORCE BE RECOGNIZED?

 A divorce will be valid by Canadian standards if when the foreign court granted the divorce,
  1. at least one spouse resided in the country or territory that granted the divorce; and
  2. they lived there for at least one year.
  3. the divorce was not obtained through unfair means such as fraud or coercion. 
When a couple obtains a divorce, without having met the tests outlined in items 1 and 2 above, the government may still accept the divorce if it was legal by local standards, and it takes into considerations the other rights that spouses may have after a separation in this country, including spousal support, child support, and fair custody and access arrangements. 

 What can happen if a person was divorced and the divorce was granted legally according to the laws of the foreign country, but not legally by Canadian standards?

 For example, several US states, including Florida, Texas and California, will grant a divorce if one spouse has lived in that state for six months. In Illinois, the time period is 90 days, in Nevada, it is just six weeks. As well, several foreign countries have legal systems with a mix of religious and state-run courts, which have their own rules and procedures.

When a Canadian lawyer is writing an opinion letter about the validity of such a divorce, he or she must provide facts and evidence to support the opinion that the divorce is valid, and demonstrate how the divorce addresses the various requirements of the Divorce Act regarding access, custody and support.

 This process is meant to weed out divorces that would be considered unfair by Canadian standards and prevent them from being recognized, when this would cause harm to an ex-spouse, or the children of a foreign marriage.

 CANADIAN LAWS vs. FOREIGN LAWS

 The question of validity can involve a complex comparison of divorce law in two jurisdictions

 In Zhang v Lin, the Alberta Court of Queen's Bench refused to recognize a Texas divorce granted to one spouse. The spouse had obtained a divorce that was apparently valid by Texas law. However, those laws did not deal with child and spousal support properly, by Canadian standards.

 On the other hand, consider Martinez v Basail: a couple were married in Cuba in 2004, and emigrated to Ontario. In 2007, while living in Ontario, they decided to separate, and mistakenly believed that needed to get a divorce back in Cuba. They travelled there and obtained an uncontested divorce with terms of custody, access and spousal support that were fairly reasonable by Canadian standards. And yet, they had only been in Cuba at the time for around one month. 

 The Ontario Court accepted that even though the couple did not meet any sort of normal residency requirement that is usually a requirement for a foreign divorce, this divorce valid, because the parties obtained it together, with good intentions.

- Paul B. Adam, Toronto
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LawFact of the Day: Family Law

Here is your daily LawFact from Wise Law for Wednesday November 30, 2016. Today we are talking about Family Law.

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Many couples live separate and apart “under one roof,” following marital separation, and do not immediately physically separate by changing residency.

Legal advice should be obtained as to whether a separation has occurred that would be recognized under Ontario law
- Garry J. Wise, Toronto
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Tuesday, November 29, 2016

Enforceability of Employment Agreements: Termination Clauses in Ontario

BY SIMRAN BAKSHI, ASSOCIATE LAWYER 

 In the excitement of finding a new job, it can be tempting to overlook the importance of the termination provisions that might be included in the employment contract you have been asked to sign.

Employment agreements in non-union environments typically govern the terms of the working relationship itself, but they may also set out exactly how the employment relationship may be brought to an end.

Generally, termination provisions in employment agreements are crafted to reduce employers' severance obligations upon termination. In fact, that employment agreement you barely remember signing might be at the center of your wrongful dismissal claim of the future. 

 ENTITLEMENTS WHERE THERE IS NO EMPLOYMENT AGREEMENT CONTAINING A TERMINATION PROVISION

 At common law, an Ontario employer may usually dismiss any employee without cause by simply providing reasonable notice of termination or pay in lieu of that notice to the departing employee.

(Like virtually everything in the law, there are definite exceptions to this general statement. For example, if the termination is inherently discriminatory or a retaliatory reprisal after a legitimate workplace safety complaint by the terminated employee, termination may be legally prohibited, and reinstatement of employment could be ordered by a court or tribunal.)

Where there is no employment contract that provides for entitlements upon termination, "reasonable notice" is determined at common law by Ontario's courts upon considering a number of factual issues about the employment, including:

  • the length of the employment
  • the employee's age and seniority
  • the level of the position held (e.g. managerial or entry level)
  • the expected difficulty in finding comparable employment, and 
  • An extensive and still-developing list of other considerations. Collectively, these considerations are known in case law as the "Bardal factors," after being outlined by the court in a landmark 1960 case called Bardal v. Globe and Mail.

DOES YOUR EMPLOYMENT AGREEMENT OPT YOU OUT OF THE COMMON LAW?


By signing an employment contract that includes a termination clause, an employee essentially agrees to opt out of his or her common law entitlement to reasonable notice of termination, and instead agrees to instead accept the specified, usually reduced compensation upon termination that is set out in the employment agreement. 

Typically, a termination clause will limit your notice entitlements to only the statutory minimum that must be provided at law pursuant to the Employment Standards Act (ESA) or Canada Labour Code (CLC). 

The legal validity and enforceability of a termination clause in an employment agreement might therefore become critical in determining the amount notice an employee is entitled to when the employment ends.

IS A TERMINATION CLAUSE IN AN EMPLOYMENT AGREEMENT ENFORCEABLE?

The law will not enforce an employment agreement that provides (or may in the future provide) for less compensation and benefit than the applicable employment standards legislation requires. If a termination provision provides less than any statutory minimum, it will likely be held to be void and unenforceable by a court.

Does a specific agreement provide for less than employment standards law requires?  While the answer to this question is often obvious, in certain circumstances it can become highly complex and technical. 

Ontario's courts are currently somewhat divided on how to interpret employment agreements that do provide for adequate minimum notice and severance, but are silent as to whether employment benefits will continue throughout the contractual notice period, as required under Ontario's ESA.

DOES AN EMPLOYMENT CONTRACT ADEQUATELY PROVIDE FOR BENEFIT CONTINUATION DURING THE STATUTORY NOTICE PERIOD?

Ontario Courts have regularly interpreted termination clauses that fail to make express reference to benefit continuation over the notice period to be null and void.
[65] “…[E]mployers should be provided with incentive to ensure that their employment contracts comply with all aspects of the employment standards legislation, including provision of adequate notice (or pay in lieu thereof) and mandated benefit continuation…” (emphasis added)
Furthermore, in circumstances where a termination clause is ambiguous on its face, it may be interpreted in favour of the employee on the basis of the doctrine of contra proferentum, which literally translates to “interpretation against the draftsman.” The rationale behind this principle is that it is the responsibility of the drafting party to be as clear and explicit as possible, particularly in an employment dynamic, where the employer has unequal bargaining power.

Where a termination clause is broadly drafted, however, to make reference in general to the minimum entitlements set out in the legislation, it may be held to be enforceable, even if it does not expressly refer to specific entitlements such as benefits. As the Court in Stevens further articulated:

It is only where a clause “attempt[s] to ‘draw the circle’ of employee rights and entitlements on termination with an all-encompassing specificity that results in the effective and impermissible exclusion and denial of [entitlements such as] the benefit continuation rights mandated by the legislation” that it may be considered null and void.

In the recent case of Oudin v Centre Francophone de Toronto, 2016 ONCA 514 (CanLII), Ontario's Court of Appeal appears to affirm that a contextual approach focusing on what the parties' reasonably understood the termination clause to mean must be taken when considering whether it actually attempts to contract out of providing the minimum entitlements required at law:
[8] The motion judge’s reasons make it clear that he understood and considered the appellant’s submission that - by referring only to “notice” - the clause ought to be interpreted as an attempt to contract out of all obligations under the ESA. The motion judge rejected this submission and found that there was no attempt to contract out of the ESA and that the parties had agreed that the ESA would be respected.

[9] The motion judge’s decision was based on his interpretation of a contract. He considered the circumstances of parties, the words of the agreement as a whole and the legal obligations between the parties. He concluded at paragraph 54:


Contracts are to be interpreted in their context and I can find no basis to interpret this employment agreement in a way that neither party reasonably expected it would be interpreted when they entered into it. There was no intent to contract out of the ESA in fact; to the contrary, the intent to apply the ESA is manifest.
It remains to be seen whether the Oudin decision, will change the course of the rather strict interpretation that the Court has often applied in favour of the employee, when reviewing termination clauses.

Overall, the validity of a termination clause must be ascertained based on a careful and nuanced review of the language used in drafting the provision; the context in which the employment contract was negotiated and agreed to; and the parties' intent and understanding of the employer's obligations and the employee's entitlements. 

Given these complexities, it is always a good idea to have a lawyer review your employment contract with you before you sign it. 

You should certainly review your employment agreement with your lawyers if your employment come to an end.  It is essential that you do so before signing any release or related settlement documentation relating to the termination.

- Simran Bakshi, Associate Lawyer, Toronto

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LawFact of the Day: Employment Law

Here is your daily LawFact from Wise Law for Tuesday November 29, 2016. Today we are talking about Employment Law.

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If your employment agreement prohibits you from competing with your employer or soliciting its customers after you leave, those restrictions may not be enforceable.

Non-competition agreements are generally unenforceable against Ontario employees. Many non-solicitation agreements may also be unenforceable. Seek legal advice if you have signed such an agreement
- Garry J. Wise, Toronto
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Monday, November 28, 2016

Top 10 Legal Headlines

Here are our top 10 legal headlines from last week.

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- Garry J. Wise, Toronto
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140Law: Legal Headlines for the week of November 28, 2016

Here are this week's leading legal news stories from Wise Law on Twitter.

- Garry J. Wise, Toronto
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Friday, November 25, 2016

Increase in Ontario Civil Filing Fees

BY RACHEL SPENCE AND LARA FRIEDMAN

As of November 6, 2016, Ontario civil and small claims courts have increased their fees, the new amounts can be found here.

This will impact both legal professionals and Ontario citizens involved in legal battles as the amount to have any document issued or filed has increased anywhere between $10-$20, which naturally increases the cost of the process but also aligns with the consumer price index increases.

Examples of some of the changes in fees:

  • Small Claims Court Plaintiff's Claim issuance is moving from $75.00 to $95.00 (infrequent claimant); 
  • Small Claims Court Defence filing is moving from $40.00 to $50.00;
  • Superior Court of Justice Statement of Claim/Notice of Action issuance is moving from $181.00 to $220.00;
  • Superior Court of Justice Statement of Defence filing is moving from $181.00 to $220.00;
  • Superior Court of Justice Notice of Intent to Defend filing is moving from $144 to $175.00;
  • Superior Court of Justice filling of a Trial Record is moving from $337.00 to $405.00;

- Rachel Spence and Lara Friedman

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Dividing and Equalizing Marital Property in Ontario

BY SIMRAN BAKSHI, ASSOCIATE LAWYER

 The process behind “consciously uncoupling” can be overwhelming, particularly when it comes to the division and equalization of family property.

 Perhaps the most common point of frustration we hear from our clients is just how daunting and confusing it can be to complete Ontario's financial statement forms and financial disclosure, generally, that is required in family law litigation.

As one client aptly described, family law litigants are often left scratching their heads wondering who actually owes whom how much and for what...

 Here is our cheat sheet to simplify the process of the division and equalization of marital property in Ontario:

 KEY LEGAL TERMS TO KNOW FOR THE EQUALIZATION OF NET FAMILY PROPERTY:
Net Family Property (NFP):

This is a defined term in the Family Law Act.

 In the most general of terms, it is a number that represents the net worth of a spouse as accumulated from the date of the marriage to the date of the separation;

 Equalization Payment:

The party who has accumulated a greater amount of wealth during the marriage, that is the one with the higher NFP, will provide payment to the other to equalize their financial positions.

 Mathematically, this is simply the difference between both party's NFP, divided in half.
Valuation Date:

 Again, this term has been defined in the Family Law Act, which sets out several different possible dates to be considered.

 Most commonly however, the valuation date tends to be the date on which the parties' separated without any reasonable prospect of reconciliation.

It is important to note that it is possible for parties to be separated even if they continue to reside together in the same household, so long as there is a clear intent by one or both spouses for the marriage or relationship to be ended;

 WHO IS ENTITLED TO SEEK THE DIVISION AND EQUALIZATION OF PROPERTY?

 Spouses who are or were married are entitled upon separation to seek an equalization of the wealth they have collectively accumulated over the course of the marriage, so long as there is no prenuptial or marriage contract that provides otherwise.

 This is premised on the notion that by entering into a marriage, the spouses are essentially entering into an economic partnership. As with commercial arrangements, if this partnership comes to an end, the spouses are entitled to divide the value of the partnership itself.

 It is important to note that common law spouses do not have similar, automatic statutory entitlements to the division of property accumulated during the relationship [which frankly we find to be quite unfortunate, but we'll leave that discussion for another day]

 WHAT IS THE GENERAL PROCESS?

 Ontario's Family Law Act provides a detailed framework governing the equalization and division of property between spouses upon marital separation.

 The process in theory is actually quite simple, and can be broken down in the following steps:
  1. Determine the value of both parties' assets and liabilities as of the date of separation; 
  2. Determine the value of both parties' assets and liabilities as of the date of the marriage (do not include the value of matrimonial home owned on the date of marriage if it continues to be the parties' matrimonial home as at the date of separation); 
  3. Determine whether either party holds any assets that are excluded under the Family Law Act;
  4. Once you have set out your respective financial positions, it is just a matter of doing the math: 
  5. Add all of your assets as of the date of separation; 
  6. Subtract your liabilities as of the date of separation; 
  7. Subtract your net worth as of the date of your marriage, or add-back the debt that you held at that time; 
  8. And finally, subtract the value of any property that is subject to exclusion; 
And there you have it, you have just computed your NFP!

Simply repeat the process to determine your (former) spouse's NFP, and you are well on your way to calculating the equalization payment that may be owing from one party to the other.

 WHY ACCOUNT FOR A PARTY'S FINANCIAL POSITION AS OF THE DATE OF MARRIAGE?

 The parties' respective financial positions going into the marriage provides context as to the degree to which they have financially benefitted during the course of the marriage.

 For example, if you entered into the marriage with significant debt, your financial position may have improved considerably during the marriage even if your net worth seems quite modest upon separation.

 Conversely, if you entered into the marriage with substantial assets, it is possible that your financial position may not have improved all that much or at all during the marriage, even if you continue to have an impressive net worth of assets.

 WHAT PROPERTY IS SUBJECT TO EXCLUSION FROM THE NET FAMILY PROPERTY:

 The Family Law Act recognizes that certain property should not subject to sharing between spouses, and accordingly should not form part of the spouse's net family property. 

Such exclusions include:
  1. Any gift or inheritance received after the date of marriage from a third person, so long as the donor or testator expressed stated that the transaction was to be a gift for the spouse, rather than for the family as a whole, that was to be excluded; 
  2. Any income derived from such gifts or inheritances, again, so long as the donor or testator has expressly stated that this is to be excluded; 
  3. Damages awarded or compensation otherwise paid for claims relating to personal injuries, nervous shock, mental distress or loss of guidance, care and companionship; 
  4. Proceeds of a policy of life insurance paid or payable on the death of the life insured; 
  5. If the above-mentioned excluded property is sold or divested, and the proceeds are used to purchase or invest in another asset, the traced property is subject to exclusion as well. This is subject to restriction however where the traced property is the matrimonial home, if the property becomes intermingled with family assets and/or if it can be proven that the parties intended to share the benefit of the excluded property; 
  6. Property that the spouses have agreed by a domestic contract is not to be included in the spouse’s net family property; and 
  7. Unadjusted pensionable earnings under the Canada Pension Plan. 
SPECIAL TREATMENT FOR THE MATRIMONIAL HOME:

 The matrimonial home is given special status and protection in Ontario's Family Law system.

 In the context of our discussion on the equalization, the value of the matrimonial home as a general rule is not accounted for as of the date of marriage. In other words, while one spouse may have purchased the home on his or her own prior to the marriage, both spouses will nonetheless equally share the equity accrued in the property upon separation or upon its eventual sale.

Keep in mind however that there is an important exception to this general rule. Where a home was owned by one spouse on the date of marriage, occupied by the parties as a matrimonial home thereafter, and sold prior to separation, the spouse owning the property can actually claim a deduction of its value as of the date of the marriage.

 It should also be noted that a spouse's interest in the matrimonial home is not actually affected by the way in which the property is legally owned between the parties. For example, both spouses will usually have equal interests in the matrimonial home, even if title is held solely by one of them. In such circumstances, it is often assumed that title is held in trust by the one spouse for the benefit of the other.  

 This can be a quite complicated question, however, particularly when there has been a significant change in the value of a home that is solely owned by one spouse.  

 This post is by no means intended to be a comprehensive discussion of the various protections afforded in relation to he matrimonial home, which should be reviewed in detail with your lawyer.I t is critical to seek legal advice on this issue.  

 IS IT POSSIBLE FOR A PARTY TO HAVE AN ENTITLEMENT TO MORE OR LESS THAN HALF OF THE DIFFERENCE OF NFP:

 The default provision in our family law system is to equalize the party's net family property.

While there are exceptions that provide for an unequal division of property, it is only applicable in limited and extraordinary and unfair of circumstances.

 Pursuant to section 5(6) of the Family Law Act:
The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to: 
(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;
(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;
(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;
(d) a spouse’s intentional or reckless depletion of his or her net family property;
(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;
(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;
(g) a written agreement between the spouses that is not a domestic contract; or
(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.” (Emphasis added)
A detailed review of the exceptional circumstances in which an unequal division or equalization of property may be appropriate is beyond the scope of this article.

 It is a good reminder however that while the process of dividing and equalizing property may seem extremely technical in nature, the underlying focus must always be on the practical financial consequences of a separation.

Each case will of course be subject to its own nuances, complexities and exceptions. 

 It is accordingly very important that you consult with a lawyer to properly assess your position in the division and equalization of family property.

- Simran Bakshi, Associate Lawyer, Toronto
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Thursday, November 24, 2016

Getting It Right: Formal Requirements for Your Last Will and Testament

BY PAUL B. ADAM, ASSOCIATE LAWYER

Remember the old expression, "close enough" only works with horseshoes and hand grenades?

 Keep this in mind when drafting your Last Will and Testament. The law is very clear about the formal requirements that must be met for a Will to be validated.  So, along with ensuring that your Will clearly articulates how you want your Estate's assets to be divided, make sure it also meets the law's formal requirements, so that you can feel safe that your Will is actually valid.

 Ontario's Formal Will Requirements

 Just what goes in to making a Last Will legally valid?

 Let's focus on three basic formal requirements about the document itself:
  1. The Last Will and Testament must be signed by the person making the last will
  2. It must be witnessed by two people
  3. The two witnesses can't also be beneficiaries under the last will
These requirements may sound simple enough, but a failure to strictly meet any of them can create serious challenges.

 Why is it so important that your Last Will and Testament meets each and every legal requirement for validity? 

 Ontario courts have very little power to validate or rectify a Will that does not meet all of the law's formal requirements for validation. This is true, even when the Will genuinely represents the wishes of the person who signed it.

 Several provinces in Canada do grant Will rectification powers to their Courts. Nova Scotia's Wills Act, as an an example, provides that a Court may order that a Will is valid and fully effective, even where the formal requirements imposed haven't been met.  This rectification is possible only if the Court is otherwise satisfied that the Will fully embodies the actual intentions of the testator.

 Ontario courts do not have this additional discretion.

 What happens when an Ontario Will does not comply with these formal requirements?

If presented with a Last Will that is unsigned, an Ontario Court will likely refuse to admit it as a last Will. (There may be an exception if someone signed a Last Will, the beneficiaries lost it, and then tried to present an unsigned version of the validly executed Last Will, along with proof that there was once a signed copy, see Sorkos v Cowderoy, Ontario Court of Appeal, 2006).

Having a Last Will that's been witnessed by only one person might seem like a less serious defect than a Will that hasn't been witnessed by anyone. But nevertheless, the Ontario Court in Sills v Daley (Ontario Superior Court, 2002) declined to validate a Last Will that had only one witness, and thus "almost" met the formal requirements.

Again, "close but no cigar."

If one, or both of the witnesses to a Last Will is a beneficiary, this may not be a fatal flaw. The Court may still accept the Will as valid, but your executors (and possibly your beneficiaries) will likely have some work to do. A beneficiary who also witnessed the Last Will will need to provide clear evidence that he or she didn't pressure or exert undue influence on the Testator to sign the document. It is by no means a given that the Court will accept the beneficiary's testimony

 Get it Right, Or Else...

 If a Court refuses to validate a Last Will, the result can be that your Estate gets divided and distributed as if you had no Will at all.  A different set of legal intestacy rules will then be followed that will distribute your assets in a way that might not reflect your actual wishes.

 That can mean upset beneficiaries, litigation, more legal fees or taxes for your Estate to pay, and the hard work you've done on your estate planning going down the drain.

 So when it comes to these basic formal requirements, ensure your Will gets it right.

- Paul B. Adam, Toronto

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LawFact of the Day: Wills and Estates

Here is your daily LawFact from Wise Law for Thursday November 24, 2016. Today we are talking about Wills and Estates.

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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
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Wednesday, November 23, 2016

LawFact of the Day: Family Law

Here is your daily LawFact from Wise Law for Wednesday November 23, 2016. Today we are talking about Family Law.

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Ontario’s Family Law Act (FLA) governs the equalization and division of property between spouses upon marital separation.

It applies only to spouses who are legally married.
- Garry J. Wise, Toronto
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Tuesday, November 22, 2016

LawFact of the Day: Employment Law

Here is your daily LawFact from Wise Law for Tuesday November 22, 2016. Today we are talking about Employment Law.

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“My ex-employer just gave me a severance proposal, but I was only given 3 days to respond. Is that legal?”

The law does not address this question. As a courtesy, you or your lawyer should advise your former employer in writing if an extension is required.
- Garry J. Wise, Toronto
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Top 7 Tips for Getting Fired Like a Pro

BY SIMRAN BAKSHI, ASSOCIATE LAWYER


It is never a pleasant experience to learn that your employment is being terminated, no matter what the circumstances may be.

Nonetheless, there is a right way of handling your dismissal. If you are careful in the way you handle your exit, it is possible to protect your legal interests and comfortably make the transition to the next chapter of your career and life.

Here are our top seven tips for getting fired like a pro:

      1.  Leave your job with grace and composure

Perhaps the best advice anyone could ever give you is to take a moment, breathe and not panic.

While it may be momentarily tempting to burst into tears, or to delete all of the files you've been working on or to finally tell your boss exactly what you really think of him or her, resist the temptation.

There is very little value in lashing out at your former employer, and in fact, in many cases, doing so will likely make the situation far worse for you. While your conduct following the termination of your employment typically does not have any bearings on the reasons for the dismissal itself, there have been some cases where Courts have considered post-termination misconduct in determining whether an Employer ultimately had cause to terminate.  

On the flip side, presenting yourself in a professional manner, even in the moments after you've been dismissed can go a long way. Remember, your objective may likely be to find another job within the same industry, and your now-former employer might be one of the best sources for such references and even job referrals.

Don't be surprised by the fact that your employer may wish for the termination to take effect immediately, and may even escort you to your desk and off the work premises. While this can undoubtedly be an upsetting and embarrassing experience, try not to take it personally. Bear in mind that such workplace policies were developed to ensure that there are no breaches of security, and not to make publicly shame you. Take your time to pack your belongings, and if appropriate and permitted, to say your goodbyes to your colleagues.

 Of course, if your former goes too far in acting inappropriately during your termination, you may (in some extreme cases) have additional remedies and even be entitled to added compensation.

 2.  Don't sign anything!

More often than not, an employer will inform you of the termination of your employment at a meeting attended by your manager and a human resources representative.

They will likely come prepared with a Letter of Termination, which may or may not set out a severance proposal, and include a Release.

It is very important that you do not sign anything without first consulting with an employment law lawyer. Signing a release will in most cases bar you from bringing any further legal claims against your employer relating to your termination.

If your employer does offer you a severance package, it may impose a deadline by which to receive your response.  Keep in mind, that regardless of whether you accept this package by the deadline or not, your employer remains obligated to provide your minimum notice and or severance entitlements as set out by the applicable employment legislation.  You may also have additional rights to common law notice by bringing a wrongful dismissal claim.

Don't rush into signing anything, as your entitlements may be far greater than what is being offered to you in this severance package. Your lawyer can review your employer's proposal with you to help you determine whether it is reasonable in the circumstances.

While you may feel pressured by the looming deadline, keep in mind that an employer will quite often agree to a reasonable extension in time so that you can properly review the offer, understand its implications and consider your legal options.

 And besides, you don't work for them any more. They don't get to give you arbitrary deadlines any more.  

 3.  Get legal advice and carefully weigh your legal options

It is important that you seek legal guidance upon your termination to discuss whether you should consider taking legal action against your former employer.

A lawyer will review your employment history, the context leading to your dismissal, and any severance offers that have been proposed to determine:

(i)                 Whether it is a good idea to attempt to negotiate and/or bring a claim against your former employer;
(ii)               The nature and potential value of such a claim;
(iii)             Which forum you should consider proceeding in;
(iv)              The merits of your claim, and the legal obstacles to be aware of;
(v)                The general process, time frame and legal costs involved;

Be prepared with a copy of your termination letter as well as a copy of your original and most recent employment contract. These documents will be very telling to your lawyer with respect to what your entitlements may be.

 While you certainly do not want to rush into taking any legal action, it is important that you consult with a lawyer in a timely manner as there are limitation periods, in other words deadlines, applicable to when you may be able to bring a claim, that vary depending on the nature of your claims.

 4. Don't ever file an Ontario Employment Standards complaint before you have consulted with your lawyers

 This part is simple. 

 Under section 97(2) of Ontario's Employment Standards Act, an employee who files a Employment Standards complaint alleging an entitlement to termination pay or severance pay may not commence a civil proceeding for wrongful dismissal that relates to the same termination or severance of employment.

 In other words, if you go the Employment Standards route, you give up your ability to claim damages in court for wrongful dismissal.  That could cause a significant loss of your entitlement to compensation, particularly if you were a longer-term employee.  

 So get qualified legal advice first.
  
5.  Start your job hunt 

 The very purpose of a severance package that may be offered to you is to support and assist you through the transition period, as you look for a new job.

It is important that you appreciate that if you make a claim for damages for wrongful dismissal, you have a duty at law to take reasonable steps to look for new employment to try to mitigate your losses.  Depending on the circumstances, starting your own business, or going back to school may also be considered reasonable steps to mitigate your losses.

Bear in mind that since the objective of severance payments is to compensate you for your income losses during a reasonable notice period, if you are successful in finding a new job and mitigating your losses, the income that you earn may be deducted from what your former employer would otherwise have to pay you.

 6.  Keep detailed records of your job search

Given its importance in your claim, it is best practice to keep records and logs of your job search, including the dates on which you search, the hours you spent looking, the websites you have visited, the recruiters or employment agencies you consult and details and documentation showing all jobs yo apply for and all interviews granted.  

 Keep copies or screenshots of all job applications and cover letters you send, rejection letters you receive and all job offers advanced to you, even if you don't accept them.

 7.  Take advantage of resources available
Thankfully, there are resources available to assist you both financially and emotionally through your dismissal.

Perhaps the most well known resource for those who qualify is Employment Insurance ("EI"), which can provide temporary financial assistance.

Again, it is important to remember that your employment law claim is meant to compensate you for actual wages lost during a reasonable notice period.  As a result, if your former employer subsequently agrees to compensate you for a period of time during which you have already received EI benefits, you may be required to pay back the EI dollars that you have received. 

 This is commonly referred to as the EI clawback.

The Ontario government has a number of programs in place to assist employees who have been dismissed from their jobs transition to new roles:
  • Through the Adjustment Advisory Program, you can meet with a support group and with an adviser to discuss how best to land on your feet following a company layoff or plant closure. For more information, visit: https://www.ontario.ca/page/adjusting-after-job-loss
Finally, as part of your severance package, your former employer may agree to pay for private services that provide vocational counseling and outplacement.

There is a silver lining that comes with your dismissal from employment. You are presented with an opportunity to start a new chapter in your life that better reflects your career goals and overall life objectives. Consulting with a lawyer, financial adviser and career counselor can often help you make this transition more seamless. 

- Simran Bakshi, Associate Lawyer, Toronto
Visit our Toronto Law Office website: www.wiselaw.net
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