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Human rights legislation prevents employers from discriminating against employees based on national or ethnic origin, race, ancestry, or other enumerated grounds. Some forget, however, that human rights laws across Canada also prohibit employers from discriminating against prospective employees or job applicants.

A recent case from the Human Rights Tribunal of Ontario acts as a reminder and serves as a lesson on how not to act towards prospective employees.

Ottawa Valley Cleaning and Restoration, a company located in Ottawa, was ordered to pay $8,000 plus interest to Mr. Malek Bouraoui, an individual who had sought employment with the company but was subsequently denied employment.

Bouraoui submitted a job application to Ottawa Valley Cleaning in June 2013. He was later contacted by a man named Jesse, who asked Bouraoui what country he was from and about his race. Bouraoui informed Jesse that he was not from Canada. Bouraoui subsequently received a text message from Jesse, telling him “try learning English you will have better luck I don’t hire foreners (sic) I keep the white man working.” Bouraoui responded back and commented that the text messages were discriminatory and if they continued, he would file a complaint against the company. Jesse continued to send text messages of a discriminatory nature and in one particular text, he wrote, “go file a complaint he will probably be a white man and he will probably laugh at you and tell you to go away.”

The adjudicator accepted the printed versions of the text messages that Bouraoui submitted as evidence. The company’s failure to respond to the allegations, file supporting documents or participate in the process was not viewed favourably by the Tribunal. In its decision, the Tribunal said, “Though the applicant’s interactions with the respondent were of a very short duration, the contents of the text messages sent to the applicant are not only discriminatory but they are egregious and abusive in nature”.

Here are some lessons to take away from this case:

  1. While an employer has full discretion as to who it wishes to hire, decisions for hiring and termination should not be based on discriminatory grounds.
  2. An employer may be found liable for discriminatory comments made by an employee or an agent of the employer. Employees who interact with prospective employees or the public must be informed about their obligations to abide by human rights laws in Ontario and Canada.
  3. It may be in the employer’s best interest to have a company policy on how to deal with prospective employees, especially those who are not selected for the position. A clearly and carefully worded response to unsuccessful job applicants may be advisable.

Employers would be well-advised to keep these considerations in mind when accepting job applications or discussing employment opportunities with prospective employees.

Article written by: Abira Balendran
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It is often said that there is no substitute for experience. Student internship programs allow students to gain valuable experience, develop transferable skills, and network with professionals.  In return, employers can benefit by being able to select, train, and influence their potential future workforce, reduce workload, and retain fresh and diverse talent for new insight and ideas. There are undoubtedly mutual benefits.  However, before setting up an internship program or hiring interns, employers must be aware of their legal obligations under Ontario’s Employment Standards Act, 2000 (“ESA”).

STUDENT INTERNS CAN BE “EMPLOYEES” FOR THE PURPOSES OF THE EMPLOYMENT STANDARDS ACT

In most cases, a person who performs work for an organization is an employee. As an employee, he or she is generally entitled to all of the rights under the ESA including the right to be paid minimum wage. There are some exceptions (discussed below), but they are very limited.  Unpaid internships are illegal under Ontario law unless they fall within an exception.

PAYING STUDENT INTERNS

In recent years, there have been a number of reports that suggest that unpaid internships in Canada are on the rise.

Unpaid internships are illegal unless the internship falls under one of the three narrow exceptions listed in the ESA:

1. Internships that are part of a program approved by a secondary school board, college, or university

2. Internships that provide training for certain professions (i.e. architecture, law, public accounting, veterinary science, dentistry, optometry)

3. Internships that meet all of the following six conditions required for the intern to be considered a “trainee”:

a. The training is similar to that which is given in a vocational school;

b. The training is for the benefit of the individual;

c. The person providing the training derives little, if any, benefit from the activity of the individual while he or she is being trained;

d. The individual does not displace employees of the person providing the training;

e. The individual is not accorded a right to become an employee of the person providing the training;

f. The individual is advised that he or she will receive no remuneration for the time that he or she spends in training.

In addition, simply giving a worker the title of “intern” does not shield the employer from meeting statutory minimums outlined in the ESA.

If the internship does not fall within any of these exceptions, the intern must be paid at least the Ontario minimum wage of $10.30 per hour for students if under the age of 18 and work less than 28 hours a week or $11.00 per hour at the general rate.  (Visit the Ontario Ministry of Labour’s website for more information – http://www.labour.gov.on.ca/english/es/pubs/guide/minwage.php).

CONSEQUENCES FOR NON-COMPLIANCE

A recent article by The Toronto Star (“the Star”), reported that “nearly 42 per cent of businesses with internships were found to be breaking the law in a recent inspection blitz.” According to the Star, the “proactive enforcement blitz” conducted by officials from the Ontario Ministry of Labour resulted in 37 compliance orders and $48,543.00 in fines and orders for back pay.

The Ministry of Labour has also reprimanded high profile companies such as Bell Canada, and two media outlets:  The Toronto Life and The Walrus. Bell Canada cancelled its extensive unpaid internship program, known as the Professional Management Program, after former interns at the telecom company initiated a federal labour dispute, seeking wages on a retroactive basis back to 2012.

Along with financial consequences, non-compliance can affect an employer’s reputation and brand.

Employers are encouraged to assess their internship programs to ensure compliance with the ESA.

Feel free to contact our office for more information or assistance.

Article written by: Abira Balendran
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Too little attention is paid to cross-border tax traps. Even when advice is sought, the response is often incomplete or simply wrong because it is restricted to the jurisdiction—and residents of that jurisdiction—in which the particular tax advisor happens to practise. As a result, many step blindly into that space where jurisdictions intersect, specialized domestic rules apply, and treaties govern.

A situation commonly encountered by Canadians in their personal lives is the application of U.S. estate tax. While it is generally known that this tax applies to Florida vacation properties, it is not so well known that: (i) this tax applies to many other assets besides; and, (ii) a treaty exemption is often available. As a result, U.S. estate tax issues are too often missed, and time and money is wasted on unnecessary or ineffective trusts.

What Canadians should understand about U.S. estate tax is this: U.S. taxpayers are subject upon death to an estate tax on the total value of their worldwide assets. This tax applies at graduated rates ranging from 18 to 40% currently subject to an exemption for the first $5,340,000 of asset value. Non-U.S. taxpayers are also subject to this tax in respect of U.S. real estate, U.S. securities, certain U.S. debt obligations, U.S. business assets (unless held through a corporation), U.S. mutual funds, and interests in certain trusts such as RRSPs, RRIFs, RESPs, and TFSAs that hold U.S. assets. Unlike U.S. taxpayers, Canadians are entitled under U.S. law to an exemption of only $60,000 of asset value. U.S. estate tax therefore extends well beyond the Florida condo. But does this mean that all U.S. assets should be thrown into a trust?

In many cases, the Canada-U.S. tax treaty provides Canadians with a full exemption from U.S. estate tax. Specifically, the treaty provides that Canadian taxpayers are entitled to the same $5.34 million exemption as U.S. taxpayers in proportion to the percentage of worldwide assets located in the U.S. In other words, if 50% of your estate value is attributable to assets otherwise subject to U.S. estate tax then you are entitled to 50% of the $5.34 million exemption.

Since the application of U.S. estate tax is determined by both the estate value and the percentage allocation to the U.S., one cannot make generalized assumptions. These rules must be understood and the analysis performed in each case. If, having done the analysis, one concludes that U.S. estate tax does apply, then and only then should one consider placing ownership in a trust. And, here again, one must be wary since the trust must be drafted to accommodate both Canadian and U.S. tax and legal considerations. Any old trust will not do. Only a trust prepared by Canadian and U.S. lawyers in collaboration will avoid U.S. estate tax without triggering unexpected legal or tax consequences on either side of the border. There is no such thing as a one-size-fits-all trust.

When, therefore, you seek advice on any matter involving more than one jurisdiction, ensure that your advisor is well-versed in the legal and tax issues on both sides of the border as well as in the possible application of treaties. If necessary, consult counsel in the other jurisdiction—because the world is not as small as it was and the cost of ignorance will always exceed the cost of proper planning.

Article written by: Patrick Westaway
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A recent case decided in Ontario’s Superior Court of Justice interprets a section of a homeowner’s fire insurance policy that does not appear to have previously been judicially considered.

An accidental fire destroyed the house. The homeowner was covered under a fire insurance policy which included a Guaranteed Replacement Cost on Buildings (GRC) endorsement.

The homeowner decided to buy a home in another location rather than rebuild the insured property.

The homeowner claimed as his loss the amount of the fire coverage under the GRC endorsement. The insurer said that their liability under the policy was limited to the face amount of the basic fire coverage because the homeowner did not rebuild on the same location.

Both parties agreed that the rebuilding costs on the original location would have exceeded the amount of the basic fire coverage.

After a detailed analysis, the Court concluded that the homeowner was not entitled to the higher GRC amount and his claim was limited to the basic fire coverage.

The GRC endorsement stated that the homeowner was only entitled to the higher coverage if the house was rebuilt “on the same location”.

The homeowner argued that the choice of a replacement home at a different location unnecessarily limits the additional coverage which the homeowner paid for with the GRC endorsement.

It has long been recommended that the GRC endorsement should be carefully considered by the homeowner, as it transfers the risk of calculating the rebuilding cost to the insurer for an additional premium.

This case highlights the necessity of carefully reading the fire insurance policy and reviewing your plans with your agent to avoid disappointment in the event of a loss.

Article written by: Gary Keller
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This question often arises during interviews with potential medical negligence claims. Over the years, I have discussed these types of claims involving physicians, hospitals, nurses; virtually every type of medical professional. During those discussions, I often provide suggestions related to “how to speak to a doctor”.

A more detailed article on this topic and “Do I have a medical negligence claim?” can be found on our website.

Whether the reason for your doctor’s visit is a regular check-up, a discussion of test results, or a specific complaint, it is very important that you have an informed discussion with your physician, particularly when the meeting pertains to a procedure or treatment that requires your consent.

Each of us approaches our health issues differently. We do, however, share a common experience – anxiety. Do I have some unknown disease? Is my cholesterol high? Do I need to lose weight? Why does my heart race? These are very common questions, and can contribute to an anxious meeting.

Anxiety affects our hearing and memory. We think that we are listening, and absorbing what the doctor is saying. The physician assumes we are listening because we are sitting in a chair, staring at the physician’s face, and possibly even nodding.

It is highly recommended that you have a family member or close friend attend the appointment with you. This is especially important when the discussion involves a serious health concern. A companion will listen, ask questions, recall and even record what is discussed.

The appointment should be a two-way discussion. If a procedure or treatment is to occur, then you need to know the following:  What? Why? How? When? Where? What are the risks? Possible consequences? Other options?

Be sure to take time and ask questions. A physician needs to know your concerns, complaints, and emotional state prior to any procedure or treatment.

Many patients believe the physician will discuss or mention anything that is important, and therefore, it is not necessary to prepare questions. A physician is medically trained to advise and inform of specific medical issues. Each physician has his or her method of conveying information. Physicians can forget or make assumptions as to what a patient needs to know. When problems arise from a procedure or treatment, it is late in the day to then ask questions that should have been asked at the beginning.

Do not assume the physician will advise you of all necessary facts. We are all human, and have good and bad days. This is your health issue, whether serious or not. Ask for a brochure or other written information. In some teaching hospitals, residents are allowed to perform or participate in the procedure. Is this your situation?

The more informed you are, the better you are prepared for any known risk to occur. Information does not guarantee a safe or risk-free procedure or treatment. Complications can arise without any fault on the part of the medical professional.

Then there are situations that do involve medical negligence. If you are involved in a medical trauma, seek help. This could be a discussion with your family doctor, specialist, family or friends. It may require legal advice. Take time to locate the appropriate lawyer. If I or my colleagues (Greg Murdoch and Cynthia Davis) can assist, please contact us.

Article written by: Steven Kenney
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In Egan v. Burton [2013] O.J. No. 2408, the parties had been married for twenty years with the husband having brought into the marriage a cottage which he had owned prior to the parties’ marriage.  The husband paid for all the expenses for the upkeep and improvements to the cottage.  The wife did not contribute to the operation or maintenance of the cottage during their marriage aside from some ordinary housekeeping.  The parties had resided at the cottage from May until September almost every year of their marriage.

At separation the parties disagreed upon whether the cottage constituted a second matrimonial home.  In this case the Court held that the evidence clearly showed the parties had used the cottage when they were spouses.  The court found that:

“ “family residence” must mean some-thing more than two spouses using the cottage.  I consider that evidence of the intention of the parties, at the time of their use, must be part of the analysis.  To do otherwise would be to undermine the purpose of the section which is remedial and intended to achieve a fair result where the parties have treated a cottage or a second home as a family residence with both parties contributing in one way or the other as one would expect a family home – which was registered only in the name of one of the parties – and after separation for the other party to be told you have no interest.”

The court held that the wife never treated the cottage as a family residence.  Unlike the matrimonial home, she made no contribution to the cottage.  Therefore, the Court held that the cottage was not a matrimonial home.

This case is a significant departure from prior cases in which the courts have generally found a cottage, vacation property and even a second occasionally-used residence to be a matrimonial home.  For example, in Oliver v. Oliver-Estate 2012 ONSC 718, a Toronto condo was found to be a second matrimonial home. In that case the condo was only being used by the husband when he came to Toronto for medical treatments or as a transit point if the couple was flying somewhere from Toronto.

At this time there appears to be a conflict in the jurisprudence on the issue of determining whether a cottage is a second matrimonial home.  It will be interesting to see how the courts deal with this issue in the future.

Couples should give consideration to whether or not there is a need for a marriage contract prior to getting married.  It would be prudent to meet with a family law lawyer to discuss your situation and determine whether a marriage contract would be appropriate.  Marriage contracts are especially important if one party owns a home or cottage and is bringing that asset into the marriage, as it will likely become a matrimonial home.  Unlike other assets brought into the marriage, at separation, a spouse is not entitled to a date of marriage deduction in the event that home or cottage is still a matrimonial home on the date of separation.  For example, if an individual has $100,000.00 in a bank account on the date of the marriage, and another individual has $100,000.00 equity in a home on the date of marriage, and that home is still a matrimonial home on the date of separation, then the individual with the bank account will be given a date of marriage credit of $100,000.00 whereas the individual with the equity in the home will not be provided with a date of marriage credit.    If the intention is to keep a home or cottage separate or to obtain credit for the value of the property coming into the marriage, one should meet with a family law lawyer to discuss having a marriage contract prepared.

In the Egan v. Burton case, if the spouses had prepared a marriage contract prior to getting married, they could have confirmed their intentions for the cottage and then likely avoided the high costs of litigating that issue.

Our lawyers in our Family Law Department would be pleased to assist anyone wishing to obtain more information on Marriage Contracts or Cohabitation Agreements.

Article written by: Jennifer Black
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By Art Linton 2014/11/16

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The Law Society of Upper Canada marked Remembrance Day 2014 with an Honorary Call to the Bar of Ontario for law students who did not return from the “Great War”

WW1

Each year the Law Society of Upper Canada commemorates Remembrance Day. The ceremony includes reading the names of lawyers and law students who lost their lives serving Canada in the first and second world wars.

The names of the fallen are read every year to pay tribute to their sacrifice and to remind us of the price they paid for the benefits every Canadian now enjoys. Until this year, the names of the law students were followed by the words: Never Called.

On Monday November 10th, in recognition of the 100th anniversary of the First World War, the Law Society of Upper Canada conducted an Honorary Call to the Bar for those Students-at-Law who left their legal studies to serve Canada and lost their lives in the “Great War.” Images from the event can be viewed here. The invitation only event was held in the rotunda of Osgoode hall and was followed by a reception in the Great Library and a formal dinner in Convocation Hall. Lawyer Art Linton, 1st Battalion Black Watch (1966-70) represented SorbaraLaw at this event.

Patrick Shea, who is a lawyer and former Reserve Officer in the Canadian Armed Forces, conceived the Honorary Call. Mr. Shea spent almost two years in research to create detailed biographies. The result is a remarkable book authored by Patrick Shea entitled They Shall Not Grow Old which is available free for viewing online here.

Fallen Soldiers Called to the Bar of Ontario on Nov. 10th 2014

PRIVATE THOMAS WILLIAM EDWARD ALLEN – Millbrook, Ontario, Admitted as a Law Student in 1910, killed in action at the age of 27, June 1917

LIEUTENANT WILLIAM KAY ANDERSON – Lindsay, Ontario, Admitted as a Law Student in 1914, killed in action at the age of 25, January 1918

LIEUTENANT WILLIAM DOUGLAS BELL – St. Thomas, Ontario, Admitted as a Law Student in 1910, killed in action at the age of 24, September 1916

LIEUTENANT ROY WARREN BIGGAR – Hamilton, Ontario, Admitted as a Law Student in 1914, killed in action at the age of 21, March 1918

CAPTAIN GERALD EDWARD BLAKE – Toronto, Ontario, Admitted as a Law Student in 1914, killed in action at the age of 24, July 1916

FIRST LIEUTENANT HAROLD STAPLES BREWSTER – Brantford, Ontario, Admitted as a Law Student in 1914, killed in action at the age of 24, December 1916

CAPTAIN STANLEY HOWSON BROCKLEBANK, MC – Arthur, Ontario, Admitted as a Law Student in 1914, died of wounds at the age of 28, September 1918

PRIVATE WALTER EVERARD ALWAY BROWN – Toronto, Ontario, Admitted as a Law Student in 1915, killed in action at the age of 24, September 1918 (Not called at request of family)

MAJOR JEFFREY HARPER BULL, DSO – Brampton, Ontario, Admitted as a Law Student in 1910, killed in action at the age of 29, August 1918

LIEUTENANT LAWRENCE CODE – Ottawa, Ontario, Admitted as a Law Student in 1913, killed in action at the age of 20, August 1917

LIEUTENANT BRYCE THOMAS DAVIDSON – Mimico, Ontario, Admitted as a Law Student in 1911, killed in action at the age of 25, July 1917

GUNNER GRANT DOUGLAS – Toronto, Ontario, Admitted as a Law Student in 1913, killed in action at the age of 29, August 191

SECOND LIEUTENANT GUY PEIRCE DUNSTAN – Toronto, Ontario, Admitted as a Law Student in 1915, killed in action at the age of 23, July 1916

PRIVATE GEORGE CLEMENS ELLIS – Leamington, Ontario, Admitted as a Law Student in 1910, died of wounds at the age of 25, June 1916

CADET ALMAN MINOR FROOM – Regina, Saskatchewan, Admitted as a Law Student in 1913, killed in action at the age of 25, September 1918

CAPTAIN HAL CHARLES FRYER, MC – Fort William, Ontario, Admitted as a Law Student in 1914, killed in action at the age of 22 September 1917

SECOND LIEUTENANT WILLIAM MILLER GEGGIE – Toronto, Ontario, Admitted as a Law Student in 1913, killed in action at the age of 24, October 1917

LIEUTENANT FRANCIS MALLOCH GIBSON – Hamilton, Ontario, Admitted as a Law Student in 1914, killed in action at the age of 22, August 1915

LIEUTENANT AMBROSE HAROLD GOODMAN – Toronto, Ontario, Admitted as a Law Student in 1917, died of wounds at the age of 21 August 1918

SECOND LIEUTENANT THOMAS SETON GORDON – Owen Sound, Ontario, Admitted as a Law Student in 1914, killed in action at the age of 25, January 1916

CAPTAIN OSWALD WETHERALD GRANT, MC – Toronto, Ontario, Admitted as a Law Student in 1914, killed in action at the age of 23, June 1916

SECOND LIEUTENANT ROBERT GORDON HAMILTON – Toronto, Ontario, Admitted as a Law Student in 1915, killed in action at the age of 22, September 1916

LIEUTENANT WILLIAM NEIL HANNA – Sarnia, Ontario, Admitted as a Law Student in 1912, killed in action at the age of 23, November 1918

SERGEANT HENRY STUART HAYES, MM – Trenton, Ontario, Admitted as a Law Student in 1915, killed in action at the age of 26, December 1916

LIEUTENANT BERNARD STANLEY HEATH, MC – Toronto, Ontario, Admitted as a Law Student in 1915, killed in action at the age of 21, November 1917

MAJOR HUGH ETHELRED MCCARTHY INCE – Toronto, Ontario, Admitted as a Law Student in 1914, killed in action at the age of 23, November 1916

PRIVATE WILLIAM ADAM IRVING – Sudbury, Ontario, Admitted as a Law Student in 1910, killed in action at the age of 21, April 1915

LIEUTENANT ERNEST REECE KAPPELE – Toronto, Ontario, Admitted as a Law Student in 1912, killed in action at the age of 24, April 1917

PRIVATE HENRY KELLEHER – Macroon, County of Cork, Ireland, Admitted as a Law Student in 1913, killed in action at the age of 24, April 1915

PRIVATE THOMAS EWART KELLY – Toronto, Ontario, Admitted as a Law Student in 1915, killed in action at the age of 25, April 1915

LIEUTENANT LLOYD BUTLER KYLES – Toronto, Ontario, Admitted as a Law Student in 1914, killed in action at the age of 22, October 1918

CAPTAIN EDWARD JOSEPH KYLIE – Lindsay, Ontario, Admitted as a Law Student in 1915, died in military service of typhoid fever at the age of 35, May 1916

LIEUTENANT GEOFFREY LYNCH-STAUNTON – Hamilton, Ontario, Admitted as a Law Student in 1915, killed in action at the age of 20, march 1917

LIEUTENANT GEORGE LAWRENCE BISSETT MACKENZIE – Toronto, Ontario, Admitted as a Law Student in 1913, killed in action at the age of 24, June 1916

SECOND LIEUTENANT RODERICK WARD MACLENNAN – Toronto, Ontario, Admitted as a Law Student in 1914, killed in a flying accident at age of 24, December 1917

LIEUTENANT GEORGE GEOFFREY MAY – Ottawa, Ontario, Admitted as a Law Student in 1915, killed in action at the age of 23, April 1917

Fallen Soldiers Called to the Bar of Ontario on Nov. 10th 2014

LIEUTENANT JAMES IGNATIUS JOACHIM McCORKELL – Udney, Ontario, Admitted as a Law Student in 1917, killed in action at the age of 23 August 1918

SECOND LIEUTENANT RONALD GWYNNYD MONTAGUE McRAE – Weston, Ontario, Admitted as a Law Student in 1915, killed in action at the age of 23 January 1918

CAPTAIN GRANT DAVIDSON MOWAT – Peterborough, Ontario, Admitted as a Law Student in 1916, killed in action at the age of 23, August 1917

LIEUTENANT HAROLD GLADSTONE MURRAY – Fort Frances, Ontario, Admitted as a Law Student in 1915, killed in action at the age of 22, December 1916

CAPTAIN HUBERT PATTERSON OSBORNE – Fredericton, New Brunswick, Admitted as a Law Student in 1914, killed in action at the age of 22, July 1917

CAPTAIN FRANKLIN WALTER OTT, MC – Toronto, Ontario, Admitted as a Law Student in 1914, killed in action at the age of 25, September 1918

LIEUTENANT HENRY ERROL BEAUCHAMP PLATT – Toronto, Ontario, Admitted as a Law Student in 1913, killed in action at the age of 24, May 1916

CAPTAIN MAURICE CAMERON ROBERTS, MC – Hamilton, Ontario, Admitted as a Law Student in 1913, killed in action at age of 21, November 1918

PRIVATE WILLIAM MILLROSE ROYS – Cornwall, Ontario, Admitted as a Law Student in 1917 at the age of 21, killed in action at the age of 22, August 1918

LIEUTENANT STANLEY ARTHUR RUTLEDGE – Fort William, Ontario, Admitted as a Law Student in 1913, killed in action at the age of 26, November 1917

PRIVATE STANLEY SMITH – Toronto, Ontario, Admitted as a Law Student in 1914, died of wounds at the age of 20, May 1918

LIEUTENANT THOMAS HERBERT SNEATH – Toronto, Ontario, Admitted as a Law Student in 1913 at the age of 18, died of wounds at the age of 21, September 1916

LIEUTENANT JOHN HERBERT ADAMS STONEMAN – Toronto, Ontario, Admitted as a Law Student in 1913, killed in action at the age of 25, September 1918

CADET DAVID ALEXANDER SWAYZE – Dunnville, Ontario, Admitted as a Law Student in 1912, killed in a flying accident at age 22, October 1917

CAPTAIN WILLIAM KEITH McGLASHEN SWAYZE – Lindsay, Ontario, Admitted as a Law Student in 1917, died AT AGE 21, February 1920

Fallen Soldiers Called to the Bar of Ontario on Nov. 10th 2014

LIEUTENANT ROYLAND ALLIN WALTER, MC – Goderich, Ontario, Admitted as a Law Student in 1917, killed in action at the age of 28, September 1918

LIEUTENANT CHARLES HERBERT WHITE – Port Hope, Ontario, Admitted as a Law Student in 1915, died of wounds at the age of 21, August 1917

LIEUTENANT MAURICE FISKEN WILKES – Brantford, Ontario, Admitted as a Law Student in 1913, killed in action at the age of 24, September 1916

LIEUTENANT REGINALD PRINSEP WILKINS – Wetaskiwin, Alberta, Admitted as a Law Student in 1915, killed in action at the age of 26, September 1918

LIEUTENANT WILLIAM HARTELY WILLARD – Toronto, Ontario, Admitted as a Law Student in 1915, killed in action at the age of 21, September 1916

LIEUTENANT ARTHUR PATRICK WILSON, MC – Tilbury, Ontario, Admitted as a Law Student in 1917, killed in action at the age of 22, September 1918

LIEUTENANT MATTHEW MAURICE WILSON – Chatham, Ontario, Admitted as a Law Student in 1914, killed in action at the age of 21, October 1918

LIEUTENANT SAMUEL LESLIE YOUNG – Brant, Ontario, Admitted as a Law Student in 1915, killed in action at the age of 21, November 1916

They shall not grow old, as we that are left grow old: Age shall not weary them, nor the years condemn. At the going down of the sun, and in the morning, we will remember them.

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Municipal, Land Use and Development – Art Linton

The Supreme Court of Canada recently clarified the law of injurious affection where no land is taken in its decision in Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13. Unfortunately, the compound test set out by the Court has left many public sector professionals feeling uncomfortable about their ability to efficiently detect and assess potential claims without extensive legal assistance. Lawyers representing property owners in such cases often apply a simplified first pass test looking for construction that permanentlysubstantially, and disproportionately affects property values or causes personal or business damage. There is no reason that expropriating authorities can’t apply the same test to identify and mitigate the risk of unanticipated litigation expense.

The Expropriations Act (Ontario) requires an expropriating authority to compensate a landowner for reduction in market value as well as personal and business damages even where none of the owner’s land is taken. Before having an entitlement to compensation, claimants are required to prove any damage was caused by action taken under statutory authority, the damage would have given rise to liability in common law if not for the statutory authority, and the damage was caused by the construction, not the subsequent use of a public project. In most cases, it will be known whether the work was performed under statutory authority, and it will be reasonably clear whether a potential claim will arise from construction and not the use of a public work.

The legal test is complicated in practice because the Court requires that damage must be substantial and unreasonable. These terms are intentionally broad to permit consideration of the particular circumstances of each public project. The determination of what is substantial and unreasonable is subject to the moving target of Ontario Municipal Board and court decisions on various fact sets that come before them over time. Further, the legal test considers whether any damage to a property is, or is not, the kind of damage a property owner should be prepared to accept without compensation. An experienced expropriation lawyer is the best choice to conduct this legal analysis.

Public officials should diligently apply the simplified first pass test early in each project to identify potential claims and refer them for legal analysis. An experienced expropriation lawyer can then apply the full legal test set out by the Supreme Court to advise whether a potential claim is likely to materially affect the cost of a project. If serious potential claims are identified before construction begins, more time and options are available to mitigate liability and manage cost.

One illustration is a single business located on a short dead end side street off a main traffic artery. Vehicles travelling in either direction on the main road are able to reach the business using a left or right hand turn. Access to that business would clearly be affected by any permanent obstacle, such as a concrete safety barrier or a raised LRT service in the median of the main road. All customers who previously accessed that business by making a left hand turn off the main road would be prevented from doing so. An application of the simplified test would show likely permanent, substantial, and disproportionate affect from the construction, visited upon this single business. Early recognition of this problem might allow solutions like a left hand turn lane with permitted U-turns at the next intersection or opening a new access at the other end of the short dead end street.

The simplified first pass test is no replacement for a thorough strategic review of every project prior to construction. However, early detection of potential claims provides time to offer remedies that may not be available once a plan is approved and to make other reasonable efforts to reduce the impact of the project on affected property owners.

Art Linton is a lawyer with Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. 

* * This article is intended only to inform and educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

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A recent decision of the Ontario Superior Court of Justice has resulted in a woman injured in a slip and fall on property owned by the City of Toronto to pay more than $9,000 in legal fees to the City when her case was dismissed by the Court because she failed to notify the City within 10 days following her injury of her intention to seek compensation.

The City of Toronto Act (like the Municipal Act) requires individuals who have injured themselves on City property to notify the City within 10 days of the date of the accident.

The Plaintiff in this case injured herself on August 19, 2011 when she tripped on a City sidewalk as a result of a 2.5 cm gap between the concrete and the interlocking brick. Unfortunately, she fractured her left wrist.

It was not until some 4 months later that the plaintiff caused a notice letter to be delivered to the City. Although there is an exception to 10 day notice requirement where there is a reasonable explanation for the delay, the plaintiff in this case was unable to provide any reason to the Court why such notice was not delivered.  Additionally, there must be evidence that the City has not been prejudiced by the delay in the receipt of the statutory notice.

Importantly, ignorance of the requirement or the statutory limitations is not an excuse for non-compliance with the Act.

It was clear that, although the Plaintiff had suffered an injury, the injury did not hinder her actions or ability to give timely notice.

The Court was quick to empathize with the Plaintiff and explicitly commented on the unfairness of the 10 day notice requirement, however, ultimately found that it was bound to give effect to the legislation and rule in favour of the City’s motion to dismiss the action.

The take home message: contact SorbaraLaw immediately following an accident causing injury so that we can take the appropriate and necessary steps to preserve your rights.

Article written by: Cynthia Davis
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* * This article is intended only to inform or educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

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When the Ontario Human Rights Code (the “Code”) was amended in June 2008 to include section 46.1 which allows a court to order remedies for an infringement of a right under the Code, many observers in the employment bar expected to see claims for damages for breach of the Code to be joined with wrongful dismissal claims. It took five years from when that amendment was enacted before an Ontario Superior Court judge exercised this new judicial power in the context of a wrongful dismissal action.

In Wilson v. Solis Mexican Foods Inc., Justice A. Duncan Grace found that the employer discriminated against the employee in the termination of her employment and awarded $20,000 in general damages for the infringement of her rights under the Code in accordance with section 46.1. This decision is significant as it is the first time that a superior court judge has awarded damages for an infringement of the Code pursuant to section 46.1 and it provides a framework for the analysis and assessment of damages in such claims.

The Code was amended on June 30, 2008 to include, among other things, section 46.1 which provides as follows:

46.1  (1)  If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

46.1 (2)  Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.

Prior to this amendment, the court did not have authority to award damages for breach of the Code. Therefore, if an employee wanted to pursue a claim for wrongful dismissal and also felt that she had been discriminated against in violation of the Code, she would have had to pursue a lawsuit for wrongful dismissal before the courts and a complaint or application under the Code.

Section 46.1 was designed to create efficiency and avoid multiplicity of proceedings. While it does not give a former employee the right to commence a civil action based solely on the alleged breach of the Code, section 46.1 does permit her to include a claim for discrimination under the Code in a claim for wrongful dismissal. If the court finds that there was an infringement of a right under the Code, it now has broad powers to award monetary compensation or order remedies other than monetary compensation, in order to remedy the violation.

In Wilson, the court was dealing with the termination of a relatively short-term employee that occurred in the middle of a medical leave of absence.

Wilson was employed by Solis for approximately 16 ½ months as a Business Analyst. Her employment was terminated without notice by way of a letter dated May 19, 2011. No cause for termination was alleged. The reason that Solis stated for the termination was that it was the result of organizational changes (specifically the sale of its New Orleans Pizza division) that made many of her job functions redundant. Wilson received two weeks’ pay in lieu of notice at the time of termination. She was 54 years old at the time of termination. She was successful in finding new employment within five months.

Wilson commenced an action for wrongful dismissal. She also alleged that her employment was terminated, at least in part, because of an ongoing back ailment and made a claim for damages pursuant to section 46.1 of the Code for an alleged violation of her rights under the Code.

The basis for the human rights claim was that Wilson had raised the issue of her back ailment with Solis in December 2010, had taken a leave of absence as a result of her back in March 2011 and was still on that leave of absence when her employment was terminated. During the leave, Solis had requested numerous medical notes from Wilson. When Wilson presented a note that indicated that she was capable of returning to work on a graduated basis, Solis indicated that this was not acceptable and required that Wilson be capable of returning to full-time hours and full duties before she could make the transition back to work. Solis required Wilson’s doctor to complete a Functional Abilities Form. When the doctor did so, Solis raised concern with it and requested a further Functional Abilities Form be completed. The last communication from Wilson’s doctor was delivered three weeks before her employment was terminated and indicated that Wilson was required to be off work for another six weeks. There was also evidence that Solis’ management had been discussing Wilson’s health condition dating back to December 2010 after she disclosed the same.

With respect to the wrongful dismissal claim, Solis conceded that it had not provided reasonable notice of termination or pay in lieu thereof. Solis maintained that a three month notice period was appropriate. Wilson sought damages based on a six month notice period. Considering all of the evidence, Justice Grace found that the reasonable notice period was three months and awarded damages accordingly.

With respect to the human rights claim, Solis maintained Wilson’s termination was unrelated to her back issues but was the result of the sale of the New Orleans Pizza division which eliminated a number of Wilson’s duties – Wilson in fact conceded that her work load would have been cut in half after the sale.

Justice Grace began his analysis by confirming that Wilson’s back ailment, while temporary, nevertheless constituted a “disability” under the Code. He then went on to consider the jurisprudence before the Human Rights Tribunal of Ontario (the “HRTO”) regarding discrimination in the context of termination of employment and accepted the proposition that “a decision to terminate an employee based in whole or in part on the fact that employee has a disability is discriminatory and contrary to the Code”.

Justice Grace found that Wilson’s ongoing back issue was a significant factor in the decision to terminate. In so doing, he relied on evidence that showed that Wilson had been assessed as performing at a satisfactory level weeks before advising Solis of her back issues in December 2010 and that, after her disclosure of this disability, Solis questioned for the first time whether Wilson was suited for her role. Justice Grace also found that Solis’ requests for documentation and its insistence that Wilson be ready for full-time hours and duties as a condition of her return to be evidence of it being disingenuous and failing to offer or even consider accommodation as required under the Code. He was also critical of Solis’ failure to notify Wilson at any time prior to the termination letter of the pending sale of the New Orleans Pizza division or the potential impact of the sale on her job.

Justice Grace concluded without hesitation that the decision to terminate Wilson’s employment started in December 2010 when she raised issues about her back. Accordingly, he found that her right to equal treatment and to be free from discrimination under section 5(1) of the Code was violated by Solis.

In considering the appropriate award of damages, Justice Grace noted that the only evidence that he had with respect to Wilson’s loss relating to “feelings, dignity and self-respect” was limited to two statements she made in her affidavit about being shocked, dismayed and angered by one of Solis’ letters that pre-dated the termination. Justice Grace nevertheless relied on previous HRTO jurisprudence in concluding that compensation for breach of the Code was not limited to claims for a loss relating to “feelings, dignity and self-respect”. In this regard, he relied on ADGA Group Consultants Inc. v. Lane in which the Divisional Court upheld the HRTO’s award of $35,000 in general damages “to compensate for the intrinsic value of the infringement of rights under the Code” and a further $10,000 for mental anguish. Justice Grace also relied on previous case law for the proposition that employers are under a duty to act fairly and are required to be candid, reasonable, honest and forthright when dismissing employees. He found that Solis did not meet that standard when it claimed in one breath that Wilson was “valued” and then created obstacles for her return and ultimately terminated employment when the time was ripe.

Having considered those principles and all of the evidence, Justice Grace determined that the appropriate award of general damages under section 46.1 was $20,000.

This damage award was significant considering that it represented approximately 30% of the Wilson’s annual salary and it was greater than the amount that was awarded for wrongful dismissal damages.

Also, Justice Grace made this award while recognizing that there was limited evidence as to the effect that the violation had on Wilson. Presumably, if Solis’ conduct had been more serious and had Wilson presented medical or other evidence to demonstrate a more significant impact on her well-being, Justice Grace would have been inclined to award considerably more in damages. Indeed, given the minimal evidence of “loss” or “injury” that was presented in this case, this ruling can be expected to be relied upon by plaintiff counsel as a starting point for damages under section 46.1.

It is clear from the ruling in Wilson that the court will adopt the same principles that HRTO has established in assessing claims of discrimination, in particular the well-established principle that the disability (or other protected ground) need only be a factor (and not the only or a primary factor) in the decision to terminate, in order to constitute a violation of the Code. It is also clear that damage awards for breach of the Code are on the rise.

Accordingly, employers are well advised to take these issues seriously and to ensure that they are complying with their obligations under the Code. Those that do not may be exposed to significant damage awards and other remedies in court.

Article written by: Justin Heimpel
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* * This article is intended only to inform or educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.


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