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Litigation – Cynthia Davis

The question of whether individuals have a distinct right to bring an action for a breach of privacy in Ontario has long been debated. Until recently, the law in Ontario remained uncertain. In January 2012, the Ontario Court of Appeal confirmed that Ontarians do indeed have the right to protection from the intrusion upon their seclusion and solitude.

It took the case of Jones v. Tsige for the common law to articulate the need for this protection. In this case, Sandra Jones (the Plaintiff) and Winnie Tsige (the Defendant) both worked at different branches of the Bank of Montreal. The two women did not know each other; however, Jones’ ex-husband became romantically involved with Tsige.

Tsige used her workplace computer to access Jones’ personal bank accounts on at least 174 occasions over the course of four years. Tsige was able to obtain personal information including Jones’ banking transactions, date of birth, marital status and address. Tsige did not publish the information elsewhere. She claimed she accessed the information because she wanted to confirm that her boyfriend, Jones’ ex-husband, was making the child support payments he told her he was required to make.

On an appeal from a motion for summary judgment that dismissed the claim, the Court of Appeal recognized that in today’s modern society protection of personal privacy is a necessity, given the accelerated technological changes that have made highly personal information readily accessible.

The Court of Appeal reviewed numerous court decisions from Canadian, British and American courts, as well as articles written by experts in the area, to conclude that the law of Ontario would be sadly deficient if it required the court to send Jones away without a remedy on the facts of this case.

Justice Sharpe, writing for the court, stated, “[r]ecognition of such a cause of action would amount to an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society.”

A person will be liable for damages for invasion of privacy if he or she intentionally intrudes, physically or otherwise, upon the seclusion of another or the private affairs or concerns of another where that invasion would be found to be highly offensive to a reasonable person, causing distress, humiliation or anguish.

The Court of Appeal also held that proof of economic loss will not be required. Having said that, the court was quick to indicate that this cause of action would be limited in scope. Where no economic loss is established, damages will be symbolic to vindicate the infringement upon a person’s rights. As such, compensation will be a modest conventional sum, up to $20,000.

Further, a claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Liability will attach only for intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively, can be described as highly offensive. Finally, the Court of Appeal made clear that a right to privacy is not absolute and these rights will have to be reconciled with competing claims, such as freedom of expression and freedom of the press.

For Jones, the court limited the damage award to $10,000, given that Tsige had apologized for her conduct and had suffered employment repercussions as well.

Our office will be monitoring this cause of action and the ways in which it is interpreted and applied to different facts.

* * 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.

 

Author: Cynthia Davis is a lawyer at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. Cynthia may be reached at (519) 741-8010 or <cdavis@sorbaralaw.com>.   

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Municipal, Land Use, and Development Law – David Sunday

Real estate developers in Canada and the United States will all be familiar with the due diligence issues that are common to most jurisdictions during the development land acquisition phase, such as the need to confirm zoning permissions and market feasibility. However, each Province and State will have its own unique variety of land use controls, some of which may “fly below the radar” of the development community but nevertheless can have a major impact on a property’s development potential. Ontario is no exception and this article flags three of its lesser known land use controls which should be considered when evaluating a possible development land acquisition in Ontario.

1. Endangered Species Act

Under the Endangered Species Act, the Province maintains a list of Species at Risk in Ontario (the “SARO List”). Once an endangered or threatened species is added to the SARO List, a variety of legislative provisions come into play, the overall goals of which are to protect species at risk and their habitats, and to promote the recovery of species at risk.

A site that provides habitat for a species at risk will typically be subject to very significant development constraints, as the Act prohibits any damage or destruction of species at risk habitat.

It bears noting that the SARO List includes not only mammals, but also various species of at risk trees and reptiles. In the Region of Waterloo, for example, the Jefferson Salamander and the Butternut Tree are two at risk species whose habitat has been identified on quite a number of sites proposed for development with significant resultant constraints.

Qualified biologists can assist a developer in determining if a site contains habitat for any species at risk and, if so, in assessing the extent of the development constraints.

2. Records of Site Condition under the Environmental Protection Act

In Ontario, what is known as a Record of Site Condition (“RSC”) must be registered with the Ministry of the Environment prior to changing the use of a property from industrial or commercial use to residential or parkland use.

An RSC is a document that summarizes the environmental condition of a property as determined by a “Qualified Professional” after conducting a Phase I Environmental Site Assessment, a Phase II Environmental Site Assessment (if appropriate), and confirmatory sampling (in the case of site cleanup).

The aim of this requirement is to ensure that contaminated industrial or commercial sites are not converted to more sensitive residential or parkland uses without first being properly remediated or risk assessed.

The effect of the RSC requirement is that any former industrial or commercial site in Ontario is unavailable for residential or parkland use until someone invests the time and money needed to obtain and register an RSC for that site.

3. Heritage Act

Ontario’s Heritage Act is intended to protect heritage properties and archaeological sites. It provides a framework for municipalities to designate individual heritage properties or to designate entire areas as Heritage Conservation Districts.

Once designated as a heritage property through the passing of a municipal by-law, a property becomes subject to restrictions on alterations which will affect heritage attributes. Before making such changes, an owner must obtain written consent from the municipal Council to such alterations.

An owner must also obtain written consent from the municipal Council prior to demolition of any building or structure on a designated property.

Developers will therefore find that heritage designated properties are more challenging development candidates than non-designated properties.

* * 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.

 

Author: David Sunday is the Group Leader in the Municipal, Land Use & Development Law Group at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. David may be reached at (519) 741-8010 or<dsunday@sorbaralaw.com>.   

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Labour and Employment – Michael Letourneau

The Ontario Court of Appeal recently released a decision that clarifies the law with respect to the effect of mitigation on a contractual severance payment.

Prior to this five-judge panel decision, the law in Ontario was divided as to whether a dismissed employee was entitled to receipt of a severance payment or pay in lieu of notice established in an employment contract without any deduction for income earned post-termination.

In Bowes v. Goss Power Products Ltd., the Court settled this uncertainty ruling that, where an employment contract sets out a specified notice period for termination without cause, the employee will not have a duty to mitigate his or her loss and the employer is not entitled to withhold or reduce contractual payments after the employee finds new employment. The duty to mitigate will apply to reduce the contractual severance payment where it is explicitly stated in the employment contract that such a deduction is required.

This decision will have a major impact on both existing employment agreements and the negotiation of new ones. Under existing agreements, employers who terminate without cause may be required to pay out a terminated employee’s full notice period, even if employee finds new work during the notice period.

For new agreements, employers and employees will likely be at odds in negotiating the duty to mitigate. Employers will seek to impose a mitigation clause in order to reduce the amount they ultimately pay out on termination. Employees will likely want such a clause omitted, so they know they will maximize their termination entitlements.

In the Bowes case, Mr. Bowes worked as Vice-President for Sales and Marketing for Goss Power Products Ltd. (GPP). His employment contract entitled him to six months notice, or pay in lieu, if he was terminated without cause. GPP terminated his employment, and Bowes started a new job only two weeks later. GPP then informed Bowes that, since he had new employment, they would not pay him more than the three weeks salary he was entitled to under the Employment Standards Act.

Bowes sued GPP, arguing that the company had agreed to give him six months notice, and that he should not be forced to accept less just because he had found alternate work shortly after termination. Although GPP was successful at trial, the Court of Appeal overturned the trial decision and awarded the full six months of notice pay to Bowes. In writing for the five-judge panel of the Court, Chief Justice Winkler held that a specified notice period or payment is equivalent to “liquidated damages” or a “contractual sum,” concept from commercial contracts that provide specified, fixed penalties for breaches. Since the parties agree to such payments in advance, there is no need for one party to mitigate the actual amount of the loss. The duty to mitigate applies only where the court must determine the amount of the damages as they relate to the period of reasonable notice of termination. But where the employer and employee have agreed in advance on the notice period, there is nothing left for the court to decide.

In his decision, Chief Justice Winkler held that it would be unfair to employees to allow employers to negotiate a fixed amount of notice pay, but then to pay the former employees less simply because they had found new work. This rule should apply unless the employer and employee had explicitly agreed otherwise. The Chief Justice acknowledged that the inferior bargaining power of employees and the desire to have predictability in employment contracts in order to reduce conflict and litigation after termination necessitated that employers be bound to the payment of the contractually agreed upon notice.

Employers and employees who would like to review current employment contracts or discuss a new contract can contact the lawyers in our Litigation Group for assistance.

* * 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.

 

Author: Michael Letourneau is a Lawyer at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. Michael may be reached at (519) 741-8010 or <mletourneau@sorbaralaw.com>.   

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Labour and Employment – Seth Jutzi

The Holiday Season may now have come and gone for another year, but did you make sure to track your overtime? Many employees likely did.

While holidays traditionally are a time for celebration and gathering with family and friends, increasingly they are becoming a time to catch up on work. The advent of mobile technology has transformed the world, and along with it the way we engage in work. Now, travelling to Aunt Tricia’s house in Hamilton or riding the chair lift at the ski hill are opportunities to check your smartphone or remotely log into your workplace desktop to catch up on email messages and the latest draft of an important document.

While mobile technology has allowed employers to increase workplace productivity, it has also kicked open the door to lawsuits brought by employees for unpaid overtime. Whether performed in the traditional workplace setting or on a smartphone outside regular office hours, employers have to keep in mind that these are workplace duties being performed for which employees can demand compensation.

In Ontario, overtime pay is governed by the Employment Standards Act, which states that employees shall receive overtime pay of at least one and one-half times the regular rate of pay for each hour worked in excess of 44 hours per week. The Act governs the vast majority of Ontario’s workforce, with a few exceptions for certain classes of workers like those in managerial roles or in certain professions like accounting and medicine.

Answering a few emails every evening and reviewing a set of documents on a Saturday morning can quickly push the average employee well beyond the 44-hour mark. All employers should be aware of this growing legal liability.

Several unpaid overtime cases are making their way through our legal systems. These cases include two high-profile class action lawsuits against the Canadian Imperial Bank of Commerce and the Bank of Nova Scotia. In the CIBC case, 3,000 employees are seeking $600 million in overtime pay, while in the case of Scotiabank, approximately 5,000 employees are claiming $350 million.

Employers who fail to address this issue run the risk of facing either civil litigation (i.e. a traditional lawsuit launched by the employee) or a complaint filed with the Ministry of Labour. If an employment standards officer finds that an employer owes wages to an employee, the officer may award the employee up to $10,000 in compensation.

Additionally, a corporation that is found to have contravened the Employment Standards Act can face a fine of up to $100,000 for a first offence. Fines for second and third offences can be as high as $250,000 and $500,000, respectively. In the case of an individual employer (i.e. a sole proprietorship), a contravention of the Act can lead to imprisonment for up to twelve months.

Employers should be mindful and ensure that there are clear and consistent policies regarding overtime and the use of mobile technology. Wherever such overtime is a likely component of an employee’s position, employers are well advised to address the issue directly in employment agreements.

* * 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.

 

Author: Seth Jutzi is a lawyer at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario.  Seth may be reached at (519) 741-8010 or <sjutzi@sorbaralaw.com>.

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