Monday, February 28, 2011

140 Law - Legal Headlines for February 28, 2011

Here are today's leading legal headlines from Wise Law on Twitter:

- Rachel Spence, Toronto

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Friday, February 25, 2011

140 Law - Legal Headlines for February 25, 2011

Here are today's leading legal headlines from Wise Law on Twitter:

- Rachel Spence, Toronto

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Thursday, February 24, 2011

Ontario Human Rights Tribunal Digest - January 31-Feb 11, 2011

Each week, Wise Law Blog reviews important decisions from the Ontario Human Rights Tribunal.


Vizcaya v. Mount Sinai Hospital

In this case, the Applicant alleged he was discriminated against on the basis of disability with respect to goods, services and facilties, contrary to the Code.

Specifically, the applicant stated that he had been removed from an after-party following a gala at the Sheraton Hotel, put on by Mount Sinai Hospital. The applicant believed that the decision to remove him, taken by a Ms. Colt of the hospital, was based on her becoming aware that he suffers from a disability, which information he alleged she had learned from a volunteer of Mount Sinai whom he had met at an earlier event. According to the Applicant, Ms. Colt had improperly inferred that his disability meant that he would cause problems at the party.

The applicant argued that his ticket for the gala, also gave him the privilege of attending the after-party. The respondent stated that his name did not appear on the guest list and this is why he was not permitted entry.

The Tribunal ultimately rejected the Applicant's claim, holding that the necessary connection between the removal and a prohibited ground of discrimination was simply not present on the facts.

The Tribunal noted that the Applicant's allegations were of a general nature, and at most, revealed that Ms. Colt may have been guilty of unfair and inappropriate treatment in denying him entry in accordance with his ticket. However, feelings of mistreatment alone without evidence that such mistreatment stems from prohibited ground under the Code does not attract the censure of the Code.

Keating v. Thompkins

In this case, the Applicant alleged brought an Application against his supervisor personally, alleging he was discriminated against in his employment by the Respondent manager on the basis of disability.

The Applicant had suffered an injury to his thumb. The applicant alleged that even though his former employer had offered him modified duties, which had been approved by the Workers Safety and Insurance Board, he had significant difficulties with performing those duties and was not permitted any further modification.

The applicant further alleged that he had been denied a salary increase because the company had a policy of not giving salary increases to employees on modified duties.

The Tribunal noted that these allegations of discrimination, while serious and perhaps meritorious, related to company policy and to company actions, not to the personal actions of the respondent plant manager. Because the plant manager had not personally, that is had not in his own dealings with the Applicant, discriminated against him, he could not be held liable under the Code for the actions of the employer, even if those actions were themselves discriminatory.


Ellis et al v. Petro Canada Inc.

In this case, the Tribunal ruled on a request for Reconsideration by the Applicant of an earlier Interim Decision made by the Tribunal regarding his application against his former employer for discrimination on the basis of disability.

Section 45.7 of the Ontario Human Rights Code provides as follows:

(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal Rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its own decision in accordance with the Rules.

While this power permits a Tribunal to reconsider an interim decision, the Tribunal noted that the power could only be exercised in relation to interim decisions that "dispose of some or all central issues in the Application", and thus, may qualify as "final decisions" for the purposes of a reconsideration request.

Since the reasons in the Interim Decision of the Applicant's matter made it clear that the decision of the Tribunal, in particular its finding on alleged discrimination against the respondent employer, was subject to change based upon the hearing of evidence from the remaining Applicants (that had not yet given evidence), the Interim Decision was not a final decision. Thus, it was not open to reconsideration.

In this case, the Applicant sought an adjournment of the hearing scheduled at the last minute on the basis that that he had recently retained new counsel and that neither party to the proceeding had complied with the rules on disclosure of documents and witness lists.

Turning to its own Practice Directions and to relevant caselaw, the Tribunal made clear that adjournments will only be granted in exceptional circumstances. Neither retaining of new counsel nor a failure on the part of the parties to exchange disclosure and witness statements are such circumstances. With respect to the latter circumstance, the Tribunal noted that an order compelling the parties to abide by their disclosure obligation is the appropriate remedy, not an adjournment.

The Tribunal emphasized that it is committed to the fair, just, and expeditous resolution of proceedings before it. As a result, unless there are truly extraordinary circumstances, such as illness of a party, witness, or representative last-minute adjournments will not be granted.

Bihari v. Holiday Retirement Corp., et al.

In this case, the applicant filed two nearly identical Applications alleging discrimination in employment on the ground of ethnic origin. The respondant filed a Request for consolidation of the two applications.

Rule 1.7(d) of the Tribunal's Rules of Procedure states that,
... in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear Applications together.
In deciding whether to give effect to this provision, the Tribunal noted that three principal factors must be considered:

1. the public interest in avoiding a multiciplicity of proceeding, including considerations of expense, delay, and the convenience of the witnesses

2. the potential prjeudice to the respondents that could result from a single hearing, including the potential for confusion and the lengthening of the hearing.

3. whether there are common issues of fact or law.

Given the great similiarity between the Applications and that absence of evidence that such consolidation would result in prejudice to any person, the respondents' request was easily granted by the Tribunal.

Manning v. JP's Restaurant and Jean Paul Langis

In this case, the Tribunal considered whether to stay a proceeding against the respondents, who had recently become bankrupt. The Tribunal turned to Section 69 of the Bankruptcy and Insolvency Act. It states: creditor has any remedy against the insolvent person or the insolvent person's property, or shall commence or continue any action, execution or other proceedings, for the recovery of a claim provable in bankruptcy.
On their reading of this provision, the Tribunal held that it was bound to stay the proceeding. The Application was suspended for one year, permitting the Applicant an opportunity to try and have the stay lifted or to try and take other steps to enable his Application against the respondents to proceed.

Niven v. Hudson's Bay Company

In response to an Application alleging discrimination against it, the Respondent employer in this case filed a response claiming that the applicant had signed a full and final release with respect to the issues in dispute in the Application. The Tribunal proceeded to invite submissions from the Applicant on same, setting a deadline by which the Applicant had to respond.

Since the Applicant did not respond, and the time for doing so had passed, the Tribunal deemed the applicant to have abandoned his Application.
- Robert Tanha, Toronto
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Ontario Employment Law: Wrongful Dismissal Claims and Limitation Periods

Section 4 of the Limitations Act, sets out the general limitation period that applies to the commencement of proceedings in respect of most claims arising at law. It states:
Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
While a wrongful dimissal action is subject to this two-year limitation period, it is important not to confuse a dismissal with the triggering of the limitation period since the two may not necessarily coincide. In Webster v. Almore Trading, the Court explained it this way:
Wrongful dismissal, in my view, raises a particularly difficult issue in the limitation context since it is not dismissal per se that is actionable but rather dismissal without reasonable notice or salary in lieu of such notice, that is actionable. Accordingly, the limitation period for an action for wrongful dismissal does not necessarily run from the date of actual dismissal. It is activated when the cause of action is discovered - that is, the date that the terminated employee knew ought to have known that he was discharged without cause and without notice or pay in lieu of notice and that a proceeding would be an appropriate way to get redress. The date of discovery may be later than the date of dismissal.
As this passage makes clear, "discoverability" may be a live issue in cases involving wrongful dimissal since an employee who is terminated may not be able to discover the actionable claims until some time later.

The reasons for this are quite simple. First, often an employee who is terminated is not told by the employer whether (or when) he or she will be receiving salary in lieu of notice, sometimes even where he or she has made the requisite enquiry. Second, without consulting with an employment lawyer, an employee who is wrongfully terminated in a situation where there many facts are in dispute will not be expected know whether he or she had an entitlement to reasonable notice.

If you have been wrongfully dismissed, please consult a lawyer who can advise as to your rights and entitlements both under the Ontario Employment Standards Act and at common law.

- Robert Tanha, Toronto
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140 Law - Legal Headlines for February 24, 2011

Here are today's leading legal headlines from Wise Law on Twitter:

- Rachel Spence, Toronto

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Wednesday, February 23, 2011

140 Law - Legal Headlines for February 23, 2011

Here are today's leading legal headlines from Wise Law on Twitter:

- Rachel Spence, Toronto

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Tuesday, February 22, 2011

140 Law - Legal Headlines for February 22, 2011

I hope that everyone enjoyed their Family Day long weekend! Here are today's leading legal headlines from Wise Law on Twitter:
- Rachel Spence, Toronto

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Confronting and Embracing Change

Rachel Spence, Legal AssistantEvery day at Wise Law Office, we receive telephone inquiries from people who have either lost their careers or partners.

These are people who have poured themselves into their careers or relationships for years, sometimes decades. Often, they've based much of their self-worth and dignity on what they do and who they are with, and are left facing what appears to be a harsh reality before them.

I realize that what I'm writing sounds dramatic, but it is dramatic! I think we can all agree that losing a job or a significant other is not an easy thing to go through.

In such circumstances, we're all left asking the same question:

“What am I supposed to do now...?”
  • Now that I don't wake up and go to the same workplace anymore.
  • Now that I don't wake up beside him or her anymore.
  • Now that I don't have any income.
  • Now that I don't have anyone to share my life with.
While I definitely don't have all the answers, I have realized one thing from working with people in these very heart-breaking situations - they often need to discuss the human side of their changes - even in a legal context - so that they can consider looking at what has happened as a fork-in-the-road that may ultimately lead to a better place.

How does this discussion begin with people facing major life changes?As Garry (my boss) would say, “Is not a science, it's an art,” which means that you have to listen and choose the right time to discuss this perspective with people.

For some, it's just letting them get everything off their chests so that they can move past it. For others, it's reminding them right away (or continuously) that everything really, will be okay (even if it doesn't seem like it now).

Things will never be the same as when you were working for employer X who treated you like crap and eventually terminated you.

Things will never be the same when your partner decides that he or she doesn't want to be with you anymore, or vice versa.

The “same” is dead and it's your choice to either take something positive from it or live within the confines of what was. I've seen people live within those confines and to be blunt, it's an ugly picture.

Every one of us is human and we're all struggling with something. The real challenge is to take responsibility and to remind ourselves that inherent in each ending is an opportunity for personal growth and an improved tomorrow.

Yet another (unanticipated) lesson from the law office, I suppose.

- Rachel Spence, Legal Assistant, Toronto

Friday, February 18, 2011

This Week At The Ontario Court of Appeal: 11-02-18

Each week, Wise Law Blog will review recent decisions by the Ontario Court of Appeal.

Love v. cuity Investment Management Inc. Appeal of a wrongful dismissal ruling. At trial the Plaintiff, a chartered accountant working as an investment manager, was awarded five months' pay in lieu of notice and damages for loss of value of shares he was contractually required to sell back to his employer upon termination. The plaintiff felt that the trial court undervalued his notice period and appealed.

At trial, Mr. Love was found to be a "short service employee," having worked for his employer for about two and a half years. The trial judge characterized him as a "senior-level sales" worker and found that he did not manage or supervise others. These factors, combined with his period of service, led to the decision of five month's required notice.

The Court of Appeal disagreed with this assessment, pointing out that Mr. Love's short period of service (which served as the trial judge's major reference point) was not the solely relevant factor. The Court found that referring to Mr. Love as a senior-level salesperson made light of his position as a senior vice president reporting directly to the CEO, and noted that unlike the circumstances in other cases cited, he was in fact a partial owner of the company while he was employed there.

The Court further found that the trial judge had not adequately taken into account the Bardal factor of potential for similar employment, and noted that Mr. Love's opportunity for finding another senior, equity-owning position in investment management was low. This required a higher period of notice, and the Court increased the applicable notice period to nine months from the original five.

The Court also considered two other issues in the appeal. Firstly, it characterized a second settlement offer made by the employer as revoking its first offer; the employer had suggested that since the second offer was merely the first offer discounted by the amount of a payment made to Mr. Love, it was in essence the same offer in modified form. The trial judge agreed; the Court did not, and stated that this was indeed a second offer, although it did not merit an increased costs payment to Mr. Love.

Secondly, the Court considered a cross-appeal by the employer, who took issue with how the damages for lost share value were calculated. At trial, the trial judge accepted the Plaintiff's argument that the increase in share value should be calculated from date acquired through to the end of the period of reasonable notice.

The employer cross-appealed, arguing that the termination date should instead have been the appropriate valuation date. The Court agreed with the employer, holding the share agreement between Mr. Love and the company required that he offer to sell back shares to the company as soon as he was not an employee of the company, and that the agreement anticipated a termination without notice in this regard. Read-the-whole-case rating: 4 for the portion dealing with the notice period; 1.5 for the balance.

R. v. Manley. A criminal case dealing with three elements: identification evidence, section 8 Charter rights dealing with the searching of stored data on a cellphone, and judge instruction.

Mr. Manley was accused of robbing a Mr. Sub and a music store at gunpoint while wearing a T-shirt with holes cut in it for a mask. (DNA on the shirt matched Mr. Manley's.) A confidential informant identified him as the suspect in the robbery, and police arrested him, seizing among other things a cellphone on his person. They searched the cellphone's data and found a picture of Mr. Manley carrying a sawed-off shotgun, which was the same sort of weapon that was used in the music store robbery. This photo was introduced as evidence at trial.

At trial, the Mr. Sub employee present at the robbery - who had not been able to identify Mr. Manley as the robber at the preliminary inquiry and had never been shown a lineup - was asked as to the robber's general features. She was then asked about Mr. Manley's eyes, and if they were "for sure" the eyes of the masked robber. She said yes, and when asked if she was certain that those eyes could not have belonged to anyone else reiterated her yes. Similarly, the owner of the music store, after testifying as to a general description of his robber, said that he had since recognized Mr. Manley as the robber by his "profile." Finally, the judge, in his instructions to the jury, reminded them that simple robbery was an included offence to armed robbery, and that they could find Mr. Manley guilty of the former even if they could not find him guilty of the latter.

Mr. Manley was convicted and sentenced to eight years' imprisonment, and appealed his sentence in three respects: that the witnesses' testimony and identifications were not properly discounted by the judge's instructions, that the photograph from the cellphone should not have been admissible as evidence at trial due to it being an illegal search, and that the judges' instructions were erroneous when he spoke about simple robbery being an included offense.

The Court denied all grounds of appeal. In respect to the witnesses' identification testimony, the Court found that while a stronger warning as to the reliability of the witnesses' purported semi-identification of Mr. Manley and an instruction stating that in-dock identification generally lacks value as a reliable identification would have been preferable, ultimately the judge conducted himself properly and gave the jury a general warning about identification evidence. Given that both witnesses qualified their in-dock identifications, the Court found the impact of those identifications was lowered, and with, it the potential for judicial error.

In regard to the cellphone search, at trial the judge found that the search and seizure was conducted for three reasons: safety of the police, checking the ownership of items in the suspect's possiession, and to preserve evidence. The third element was satisfied because an officer at the scene felt that if the phone, which had a low battery, powered down the photo might be lost, which was why he downloaded it to his phone and then to a police computer. Mr. Manley argued that the police were not entitled to search the data in the phone without warrant as an incident to arrest, citing R. v. Polius,, where a Superior Court judge ruled that the Crown did not have the power to examine the contents of a lawfully seized cellphone without a warrant. The Crown responded to the appeal arguing both that under the circumstances, the police were entitled to a cursory warrantless inspection of the phone, and that more broadly Polius was bad law and that the police are entitled to conduct warrantless searches of cellphones.

Although the Court agreed that Polius was good law and that generally warrantless searches of cellphones, which often contain personal and private information, should not be allowed, they agreed with the Crown that in this case the search was lawful since the police had a legitimate interest in determining whether the cellphone was stolen or owned by the suspect, and did not know the number (and the Court stated that if they had indeed had access to the number, further search of the phone's data would have been unlawful).

Finally, in regards to the robbery instruction, the Court felt that the instruction was justified. The Crown argued that the wording of the judge's instruction did not limit the Crown to a specific mode of robbery; the inclusion of the sawed-off shotgun as the specific weapon in this instance was not to particularize the offence but rather to establish a threshold for the minimum sentence for robbery where a firearm was used. Read-the-whole-case rating: 3.

- Christopher Bird, Toronto

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