Wrongfully Dismissed? Where Should You Sue Your Employer?

Wrongfully Dismissed? Where Should You Sue Your Employer?

It is not at all unusual for an employee to reside in one country, but work in another. In fact, it is not unusual for an employee to regularly work in more than one country. It is also common for the employer to maintain its head offices in a different country than the one where the employee resides.

Situations like these can give rise to conflict of laws questions such as:

“Which law should apply – the law of the country where the employee is situated, or the law of the country where the employer is located?”

“Should the court where the employer’s head offices are located have jurisdiction over the case, or the court where the employee resides?”

Generally speaking, these questions are often determined by the jurisdiction where the employment agreement was made or entered into. Sometimes, the employment contract itself specifies which country’s laws will govern. Other times, however, the answer is not always clear. A recent decision of the Divisional Court, found here, provides a good illustration of this.

In this case, the employee signed the employment contract in Ontario. However, the employee also worked in the state of New York. When the employee was dismissed for a cause, a wrongful dismissal action was started in Ontario.

In response, the employer brought a motion to stay the court proceedings on the basis that the court in New York was the proper forum for the proceedings since that was where the employee worked. The Master in Ontario hearing the motion had to determine whether the balance of convenience favoured conducting the litigation in Ontario or in New York.

The Divisional Court upheld the Master’s decision to dismiss the employer’s motion and  agreed with the Master’s analysis that there was an advantage that the courts in Ontario had over the courts in New York in properly determining the issues in this case. Specifically, since Ontario law applied to the employment relationship, it would be necessary to consider the principles of wrongful dismissal and the entitlement to reasonable notice. These are concepts that New York judges, who are more accustomed to “at will” dismissals, would not be as well acquainted with compared to Ontario judges.

The point to be taken away from this case is that these kinds of problems can be avoided with a carefully-worded employment agreement, underscoring the importance of obtaining legal advice before entering into an employment relationship. This type of risk management can save both employers and employees significant time and money down the road.

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

Written by Jeffrey Robles and originally published on the blog at http://jeffreyrobles.com. Jeffrey represents clients in the areas of employment law and personal injury in the Ontario Superior Court of Justice.  
Negligence and Children’s Liability

Negligence and Children’s Liability

As a father myself, the idea of children being held liable hits home for me. We generally consider children to be innocent and incapable of the kinds of wrongdoing that we generally associate with adults. The law, however, does not have the luxury of turning a blind eye to this. Last month, the Court of Appeal dealt with the issue of the possible contributory negligence of a child who was injured while crossing the road. A link to this decision can be found here.

Just like adults, children can be found negligent in law. All people, adults and children alike, are held to a certain standard of care. In the case of children, the test is whether or not a child has exercised the care expected from children of similar age, intelligence and experience. If you take a moment to consider this, you can see how difficult an analysis this can be.

In the case before the Court of Appeal, the litigants agreed that the injured boy was old enough to be found contributorily negligent. However, they disagreed as to whether or not he was in fact contributorily negligent.

The Court of Appeal deferred to the trial judge’s findings that the boy was of average intelligence, had been taught to look both ways before crossing, did not remember to look before crossing, and knew better. At the same time, the trial judge concluded that the boy did not have experience crossing a busy four-lane highway unsupervised. The appellate court also deferred to this finding.

As parents, we sometimes get frustrated with our children for doing things that we feel “they should know better” than to do. I will readily admit that I am guilty of this with my own children from time to time.

Yet, the Court of Appeal reminds us that “children lack the judgment of adults and that they are notoriously forgetful when they are distracted or confused, and therefore do not follow instructions on the basis of which “they should know better”, are concepts that are generally accepted and that have been recognized by the courts as factors distinguishing the conduct of children from that of adults in the negligence liability context”.

It is important to keep in mind that the thought processes of children are and should be treated differently – not only in fact, but also in law. This is underscored by the fact that children are afforded special legal representation not available to adults, by way of the Office of the Children’s Lawyer. Bearing in mind their vulnerability, children should be treated with utmost care and concern by the law, and not just their parents.

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

Written by Jeffrey Robles and originally published on the blog at http://jeffreyrobles.com. Jeffrey represents clients in the areas of employment law and personal injury in the Ontario Superior Court of Justice.  
Video – What medical information can an employer request?

Video – What medical information can an employer request?


For most employers, it is a common practice or policy to require medical documentation when an employee is off from work for an extended period of time due to illness or injury. There is, however, a delicate balance that an employer must strike between obtaining information needed to accommodate the employee’s disability and respecting the privacy of the employee’s health records. So the question is, “what medical information should an employer be allowed to obtain from an employee who is sick or injured?”

Recently, the Ontario Human Rights Commission released its policy position on the scope of medical documentation that an employer ought to be able to request from an employee when a disability-related accommodation is requested. A link to the policy position can be found here.

According to the Commission, too little information can prevent appropriate accommodations from being meaningfully implemented.  On the other hand, overly broad requests for medical information can undermine the dignity and privacy of people with disabilities.

In its policy position, the Commission provides guidance to employers and employees on the type and scope of medical information that can reasonably be sought to support an accommodation request.  The documentation should set out 5 things:

  1. That the employee has a disability;
  2. That there are certain limitations or needs related to the disability;
  3. Whether the employee can perform the essential duties or requirements of the job, with or without accommodation;
  4. The type of accommodation that may be needed to allow the employee to fulfill those essential duties or requirements of the job; and
  5. Regular updates about when the employee can be expected to come back to work if the employee is on sick leave.

As stated by the Commission, the key to this process is that the information requested must be the least intrusive to the employee’s privacy while still giving the employer enough information to make informed decisions about the accommodation sought.  To quote the Commission, “the focus should always be on the functional limitations associated with the disability, rather than a person’s diagnosis.”

An employer does not have a right to the employee’s confidential medical information.  This includes the cause of the disability, its symptoms or its treatment, unless the complexity of the the employee’s disability necessitates more information in order to develop and implement an accommodation.

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

Written by Jeffrey Robles and originally published on the blog at http://jeffreyrobles.com. Jeffrey represents clients in the areas of employment law and personal injury in the Ontario Superior Court of Justice.  
How Long Can I Wait To Sue My Employer?

How Long Can I Wait To Sue My Employer?

This is a question that I am often asked by clients.

The Limitations Act, 2002, S.O. 2002, c. 24 provides that a person generally has 2 years from the day when that person knew or ought to have known that an injury, loss or damage had occurred. There are circumstances where the limitation period is extended beyond 2 years. There are other instances when the limitation period can be deferred. However, they usually do not apply to employment law cases.

In Bailey v. Milo-Food & Agricultural Infrastructure & Services Inc.the Ontario Superior Court of Justice dealt with a motion to dismiss a wrongful dismissal action on the basis that the 2 year limitation period had expired. The employer argued that the employee’s claim was statute-barred because the Statement of Claim was filed on December 21, 2015, more than 2 years after the notice of termination was given to the employee on March 18, 2013. On the other hand, the employee asserted that his claim was brought well within the 2 year limitation period because his employment did not actually end until March 22, 2015.

The motions judge reviewed the leading authorities on this issue, the principles from which can be summarized as follows:

  1. A limitation period commences when the cause of action arises. In a breach of contract, the cause of action arises when the contract was breached.  For the purposes of a wrongful dismissal action, the employment contract is breached when the employer dismisses the employee without reasonable notice.
  2. A cause of action accrues and a limitation period starts to run when all of the elements of a wrong exist. Once a plaintiff and a defendant have been identified and a breach of contract has occurred, time will start to run.

Applying these principles, the motions judge concluded that the employment contract in this case was breached when the employee received the notice of termination on March 18, 2013. It was at that point in time that the employee could have determined that the amount of notice was insufficient and could have sued for wrongful dismissal. Instead, the employee refrained from doing so and waited more than 2 years before starting his lawsuit. In other words, time had run out.  As a result, the employee’s claim was statute-barred and could not be allowed to continue.

In the end, the motions judge decided this issue in favour of the employer and dismissed the employee’s wrongful dismissal claim.

There are times when it makes sense to wait and hold off on starting a wrongful dismissal action. Perhaps there is an opportunity to negotiate a settlement and avoid the cost of litigation. Perhaps the employee has a good chance of finding a new job, which can guide the course of action to be taken. For employers and employees alike, obtaining legal advice from knowledgeable counsel can be a key component in developing the right strategy to deploy.

Written by Jeffrey Robles and originally published on the blog at http://jeffreyrobles.com. Jeffrey represents clients in the areas of employment law and personal injury in the Ontario Superior Court of Justice.  

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

What Is Unjust Enrichment and How Can It Affect My Property Rights?

What Is Unjust Enrichment and How Can It Affect My Property Rights?

When people think of property rights between individuals, often matrimonial disputes come to mind. In Ontario, only married couples have a right to what is called “equalization of net family properties” as provided for under the Family Law Act. For unmarried couples, any right to the property of the other spouse after a breakdown of the relationship is most often obtained by way of a claim for unjust enrichment.

However, a claim for unjust enrichment is not limited to matrimonial disputes. This kind of claim can just as easily be advanced in a civil litigation context. In the past, I have used unjust enrichment where disputes arose between business partners after a deal involving property fell apart.

Claims of this nature can also arise between siblings involved in a family business. Often, before the dispute arose, the familial bonds of love, trust and understanding outweighed the need for documentation concerning ownership and governance of the business. Sadly, property, or its value, can cause those bonds to break apart.

What is unjust enrichment? It is a claim that seeks to address situations where one party has taken advantage of the resources of another party to the detriment of that other party. The courts have outlined the following elements of unjust enrichment, all of which must be established in order to succeed in such a claim:

There must be a benefit conferred from one party to another party. For example, this can be in the form of money, the acquisition or improvement of property, or valuable services rendered.
There must be a corresponding deprivation of that benefit experienced by the party conferring the benefit. For instance, if a party renders a service to another, that party has been deprived of the opportunity cost of their own time and effort.
Lastly, there must be no legal basis (referred to in the case law as a juristic reason) for the enrichment. The party receiving the benefit should be be able to show why they should be allowed to retain the benefit. Such reasons can include a contract for services rendered, or the intention of a gift.
If these elements are established, then a claim for unjust enrichment is proven. A court can then consider the appropriate remedy, whether it be monetary compensation based on the value of the benefit or enrichment conferred or a constructive trust (which is essentially a declaration of an interest in property despite the absence of legal title).

In a perfect world, all property disputes would be avoided, or at least determined, with appropriate documentation clearly setting out ownership and any obligations or entitlements. Nevertheless, in this imperfect world we live in, an unjust enrichment claim can be an effective way to address unfair or inequitable situations involving property.

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

Written by Jeffrey Robles and originally published on the blog at http://jeffreyrobles.com. Jeffrey represents clients in the areas of employment law and personal injury in the Ontario Superior Court of Justice.  

Michelle Choi

Michelle Choi

Michelle Choi

Michelle Choi

Estate & Family Law

Michelle joined Reilly & Partners after her call to the bar in 2018.

She obtained her Bachelor of Laws at the University of Leicester in the United Kingdom. She enjoyed researching case law and developing fact-based arguments both as a moot competitor and later as a moot judge for her university’s Law Society. Michelle was a founding member of University of Leicester’s Information Technology Law Society and the co-founder of the society’s law journal, LegalBrew.

Throughout law school, she volunteered at the Leicester City of Sanctuary as part of the New Evidence Search Team, helping asylum seekers find credible evidence to support their refugee claims. She also gained experience as a summer student at a criminal defence law firm.

Michelle discovered her passion for family law while working and articling at a retail-based law firm in Toronto. She understands that family matters can be emotionally complex and that legal services must be orientated around the client’s circumstances. Her diverse background increased her respect for building strong relationships with clients who come from all walks of life.

When not at the office, Michelle enjoys dancing and going on hiking trips with friends.

Please feel free to contact Michelle by telephone at (905) 427-4077 ext. 32 or by email at MChoi@reillyandpartners.com

 

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Weak Economy? You Could Be Entitled to More Pay in Lieu of Notice

Weak Economy? You Could Be Entitled to More Pay in Lieu of Notice

downturnIn a previous case comment, I wrote about how an employer’s declining financial health can reduce a court’s assessment of the reasonable notice period that an employee may be entitled to in a wrongful dismissal case.

By contrast, in a recent case, Zoldowski v. Strongco Corporation, 2015 ONSC 5485, the Ontario Superior Court of Justice considered how an economic downturn can increase a court’s assessment of reasonable notice.

Facts of the Case

The plaintiff, Ms. Zoldowski, was 39 years old when she was let go from her job as a Parts Administrator after 22 years of employment.  The defendant employer, Strongco Corporation, did not assert cause for terminating Ms. Zoldowski’s employment, but paid her only the minimum statutory entitlements under the Employment Standards Act, 2000.  

Not surprisingly, Ms. Zoldowski was not satisfied with what she received and sued her employer.

Issue Before the Court

The main issue that the court had to determine was how much notice, or more specifically pay in lieu of notice, Ms. Zoldowski should have received.

Ms. Zoldowski’s lawyer argued that 15 months of pay in lieu of notice was appropriate based on the facts.  The employer’s counsel argued for 10 months only.  Interestingly, the case does not mention if the employer paid the difference between 10 months of pay in lieu of notice (that it ostensibly acknowledged owing) and the minimum statutory entitlements.

The court concluded that damages equivalent to 14 months of pay in lieu of notice were appropriate in light of the general economic downturn in the Greater Toronto Area and Southern Ontario for the first half of 2015.  In doing so, the court stated, “As part of this determination the court may consider the economic climate the employee is put into when terminated.  If there is an economic downturn, then that may make it more difficult to find a job and may justify a longer notice period…”

Practical Considerations

In my view, this case underscores the fact that the list of considerations that may go into an assessment of a reasonable notice period is not finite.  As the court stated, “This list is non-exhaustive, and each case will depend upon its own particular circumstances.”

In addition, employers would be well-advised to simply pay what they believe employees are entitled to upon termination and not just the minimum statutory entitlements.  Doing so can deter a wrongful dismissal action because it may no longer make sense for an employee to incur substantial legal fees when the best possible result is now a fraction of what it was when only the minimum statutory entitlement was paid.

This article is intended only to provide general information and does not constitute legal advice.  Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

Written by Jeffrey Robles and originally published on the blog at http://jeffreyrobles.com. Jeffrey represents clients in the areas of employment law and personal injury in the Ontario Superior Court of Justice.  
Purchasing a Business in Ontario

Purchasing a Business in Ontario

Purchasing a Business in Ontario

Preliminary Considerations

Acquiring a privately held business in Ontario can be accomplished through an asset or share transaction, depending on both tax and non-tax considerations. Generally speaking, purchasers prefer to buy assets and a vendor prefers to sell shares. This varies depending on the circumstances of the transaction and the bargaining power of each party. 

Asset Transaction

An asset transaction allows the purchaser to select only those assets and liabilities that it wants to acquire. The remaining liabilities, unless they are expressly assumed, remain the responsibility of the vendor. This allows for flexibility and since liability is fixed, there is no uncertainty to the purchaser as to the nature and extent of the liabilities they will inherit. There are of course, certain exceptions as to the liabilities the purchaser has to undertake e.g. collective agreements of unionized employees.

Purchaser’s preference

A purchaser wants to minimize the purchase price and maximize tax deductions from the assets in future years. A purchaser will often prefer to structure the transaction as an asset purchase and take the tax deductions against income in future years i.e. through a capital cost allowance on depreciable assets; cost of inventory. In comparison to a share transaction, shares are non-depreciable property, there is no tax relief associated with the cost of the shares. 

Share Transaction

A share deal involves acquiring the corporation itself, with all of the underlying assets and its liabilities. Ownership of the corporation’s shares result in direct ownership of all of the corporation’s assets and undertakings, whether known or unknown. Therefore, the purchaser must complete due diligence searches and obtain representations and warranties from the owners of the corporation’s shares to safeguard against potential claims in the future. It is common for the parties to negotiate indemnity agreements, where the vendor will agree to pay for any unforeseen liabilities that may arise after the sale for a specified duration of time.

Vendor’s preference

A vendor is usually concerned about the immediate income tax consequences in the year of sale and prefers a share sale as capital gains are taxed more favourably. There are conditions that must be satisfied at the time the shareholder sells his or her shares and throughout the preceding 24-month period that a corporation must satisfy to qualify for the tax deduction.

Additionally, when the shareholder sells shares in a company, the proceeds are paid directly to the shareholder and are only taxed at the shareholder level. This is in comparison to an asset sale where there are two levels of taxation.

These are only basic considerations and may not apply to every situation. Apart from negotiating the purchase price, employment issues and indemnities; structuring the sale or purchase of a business depends on numerous factors.

Purchasing a Business in Ontario

Author: Laura Chiu, Reilly and Partners. Laura joined Reilly & Partners Professional Corporation as an associate after her call to the bar in 2013. Prior to this, Laura gained experience as a summer and articling student in the areas of real estate, administrative law, commercial and civil litigation, and estates and trusts.

Facebook Divorce

Facebook Divorce

 

Facebook-Divorce-Canada“Facebook divorce” refers to the increasing number of marital breakdowns that have occurred as a result of information found or discovered on social networking sites like Facebook.

In recent years, Canadian Courts have allowed postings on social media sites, predominantly Facebook, to be used as evidence in family law matters. Social media sites are often one of the first sources the opposing party will look to in an effort to find incriminating evidence. Anything you post on Facebook may be used against you in your family law matter.

Social media stalking skills have become invaluable to the legal world for divorce cases in particular. Online photo albums, profile pages, news feed comments, status updates and tweets have become a great source for evidence and leads. Even if content on Facebook is deleted, it can later be retrieved by forensic experts and potentially used in court as evidence in divorce proceedings.

Facebook posts are used often as evidence in custody applications and applications to vary child and spousal support. In custody applications, Facbook evidence is used to prove that one of the parents does not act in the best interest of the child or is unsuited to care for the child. Posts that refer to or pictures of high-end purchases can be used to demonstrate the ability to pay support.

The most common way to gather information on Facebook is from the couple’s mutual online friends who still have access to the spouse’s profile and posts. Many times the spouse will “de-friend” a partner but forget about their shared friends, who can access information on their profile. Another way of uncovering useful information is from searching the profiles and posts of the suspected “other man” or “other woman”.

Evidence that may be found on social networking sites, which may potentially be used against you in a “Facebook divorce” situation include;

  • A friend “tags” a compromising photo of you drinking at a party or vacationing when you claim you have no time to see your children or dispute allegations of infidelity.
  • Posts about your location or activities that conflict with business trips or child visitation matters.
  • Posts that suggests infidelity or deception, such as a Facebook status change to “single, but looking”.

Facebook is sited as the cause for divorce in an increasing number of divorce cases because Facebook is creating online (and offline) affairs. Facebook makes it easy for old love interests to reconnect and foster relationships that challenge the foundation of the marriage and lead to divorce.

Tips for Facebook Users Facing a Divorce

  • Be careful what you post on Facebook.
  • Know that what you say or post may be used against you in court, and divorce lawyers use Facebook as a matter of fact when gathering evidence.
  • You do not own the content on Facebook. Facebook has the right to do certain things with your content even without your knowledge.
  • Ask friends and family members to refrain from posting potentially damaging information about you on their Facebook page.
  • Familiarize yourself with privacy settings to ensure there is no way personal information can be accessed.

Lawyers advise users of Facebook and other social media who are headed toward a divorce or custody battle to edit their profiles, be cautious about updating statuses and double check to see who is really a “friend.”

Fired or Laid Off? Know Your Rights

Fired or Laid Off? Know Your Rights

getting_firedIf you have been fired or laid off with no notice, or no pay, your employer may be breaking the law.

Find out about your rights under the Ontario Employment Standards Act (ESA).

Not all jobs are covered by the ESA, and in some cases only parts of the ESA apply.

Some employers claim that their workers are self-employed or independent contractors and the ESA does not apply to them. If this is your situation, it is a good idea to get legal advice. Even if you signed something that says you are an “independent contractor” or in business for yourself, the rights in the ESA might still apply to you.

Some industries are regulated by the federal government, including banks, airlines, trucking, and broadcasting. Workers in these industries are covered by the Canada Labour Code.

Your employer does not have to tell you why you are being fired or laid off.

In most cases, if you are fired or laid off for more than 13 weeks, your employer must give written notice.  If you are fired without proper notice, your employer must give you termination pay – your normal wages for the weeks you should have been given notice. The amount of notice or termination pay you get depends on how long you have worked for your employer.  The ESA sets out minimum notice periods ranging from 1 week for people who have worked at least 3 months, to 8 weeks for people who have worked for 8 years or more.  If an employer fires 50 or more workers within a 4-week period, the minimum notice periods might be different and you should seek legal advice.

A notice  ordered by the Court: A court can decide that more notice was required in a particular case because the court is not limited to the minimum notice periods in the ESA. The amount of notice a court will order depends on all the circumstances, such as the type of job, the availability of similar employment, and the age of the worker – not just length of employment. A court can also order an employer to pay you for damages such as  discrimination, harassment.

 

You can be laid off without notice if you are laid off temporarily. In most cases, the law says you are laid off temporarily if you are laid off for 13 weeks or less. The rules about temporary lay-off are complicated. If you are laid off, get legal advice about whether your lay-off is temporary or permanent.

In some cases, being forced out of a job is the same as being fired. For example, if you leave because your employer refuses to pay you, or because your employer is discriminating against you, you may have the same rights as if you were fired. You should get legal help right away.

In some situations you can be fired or laid off without notice; if you have not worked continuously for at least 3 months, or if you are fired because of your own misconduct However, what your employer says is misconduct might not be misconduct under the law so you should seek legal advice.

If you are protected by a union, check your collective agreement to find out about your rights at work, or talk to your shop steward. You will have to use the grievance procedure in the collective agreement to enforce your rights.

Severance pay is another payment that some people get when they lose their jobs under specific circumstances. To qualify you must have worked at least 5 years for your employer and your employer pays out wages of at least $2.5 million a year in Ontario, or at least 50 people will be losing their jobs within a 6-month period because the business is being cut back. Under ESA severance pay equals one week’s pay for each year of employment, up to a maximum of 26 weeks.one week’s pay for each year of employment, up to a maximum of 26 weeks.

Your employer must pay your wages and vacation pay and any money owing to you as a result of your termination no later than 7 days after your employment ends, or your next regular pay day if it comes more than 7 days after your employment ends. Severance pay can be paid in instalments up to 3 years if you agree in writing or if the Director of Employment Standards approves. In this case if your employer misses a scheduled payment, the balance of the severance pay becomes due immediately.

Your employer must prepare a Record of Employment (ROE) and give it to you within 6 days after your last day of work. Or your employer can send it to the government electronically within 16 days after your last day of work.

f you are unemployed and looking for work, you may be able to get Employment Insurance(EI) benefits. If you do not qualify for EI or you are waiting for EI, you might be able to get social assistance benefits from Ontario Works (OW). If you quit or got fired, you might still qualify for benefits depending on the circumstances.

In most cases, you cannot get your job back if you are fired. But, if you think you were fired because you tried to exercise your legal rights under the ESA, you should get legal help. The Ministry of Labour can order your employer to compensate you and give you back your job. Examples of exercising your legal rights under the ESA are:

  • taking the pregnancy or parental leave you are entitled to, and returning to your job at the end of your leave,
  • asking about your rights or asking your employer to obey the law,
  • refusing to sign an agreement affecting your rights (for example, an agreement about how you will be compensated for overtime),
  • making a claim against your employer, or
  • giving information to an Employment Standards Officer who is investigating your employer.

You should also get legal help if you think you were fired:

  • because of your race, sex, age, disability, or other reasons that violate your human rights,
  • because you raised a health or safety issue in the workplace, or
  • because you raised a concern about your employer not obeying environmental protection laws.

You may be able to enforce your rights as a worker by making a claim against your employer. The Ministry of Labour can order your employer to pay you money that you are owed.

In some cases, you may be able to bring a court action against your employer. If you do, you cannot file a claim for the same violation of your rights with the Ministry of Labour.

In general, a claim for unpaid wages must be filed with the Ministry of Labour within 6 months of the date the wages were owing. The claim can include unpaid wages for the last 12 months, as long as it is filed within 6 months of one of the dates when unpaid wages were due. A claim for vacation pay can be filed up to 12 months after it became due.

In certain cases, you have up to 2 years to file if your claim does not involve any unpaid wages. For example, you have up to 2 years to file a claim against your employer for penalizing you, or threatening to penalize you, because you exercised your legal rights.

If your employer has gone bankrupt, you may be able to get wages, vacation pay, severance pay, and termination pay owing to you by applying to the federal Wage Earner Protection Program (WEPP).

How Long Does Child Support Continue?

How Long Does Child Support Continue?

child_supportIf your support agreement includes a specific date for when child support will end – such as when the child reaches the age of majority or for as long as the child is going to school full-time – the answer to that question is straight forward: you must continue to pay child support until the date specified in your order or agreement. 

If your maintenance order or agreement does not include a specific end date, however, the answer is more complicated. 

You can assume that you must pay child support at least until the child reaches the age of majority, but you may have to continue paying child support for some time longer. How much longer depends on your child’s particular living situation and circumstances. 

Under the Family Law Act in Ontario, child support is limited to someone under the age of 18 or over the age of 18 and in a full time program of education. Child support must be paid as long as the child remains dependent. A dependent child is any child under the age of 18 unless:

  • the child has married, or
  • the child is at least 16 years old and has “voluntarily withdrawn from parental control”.

A child who is 18 or older may also be considered dependent if they cannot support themselves because:

  • they have a disability or illness, or
  • they are going to school full-time. (This usually continues until the child turns 22 years old or gets one post-secondary degree or diploma, but a judge may order support to continue even longer.)

When the judge decides how much support should be paid for a child who is 18 or older, they take into account any earnings or income the child receives from other sources.

Child support continues even if the parent receiving it gets married or starts to live with someone else.

Update on Recent Appeal Decisions

Update on Recent Appeal Decisions

mediationA number of interesting cases have been handed down by the Court of Appeal and the Supreme Court of Canada in the last few months.  The following is a summary of these cases to bring you up to  speed.

Moore v. Getahun, 2015 ONCA 55 – Reviewing Expert Reports

When this case was decided at trial, litigators all over Ontario were at a loss.  The long-standing practice of assisting expert witnesses in framing their reports during the drafting process was held to be no longer acceptable.  Fortunately, the Court of Appeal set things right and litigators across the province breathed a collective sigh of relief.

In the reasons for the decision, the Court of Appeal stated, “Just as lawyers and judges need the input of experts, so too do expert witnesses need the assistance of lawyers in framing their reports in a way that is comprehensible and responsive to the pertinent legal issues in a case… Reviewing a draft report enables counsel to ensure that the report (i) complies with the Rules of Civil Procedure and the rules of evidence, (ii) addresses and is restricted to the relevant issues and (iii) is written in a manner and style that is accessible and comprehensible.”

Imagine proceeding to trial, needing an expert witness’ opinion, but your lawyer is unable to provide guidance on how the witness’ expert report should be presented.  Luckily, the Court of Appeal has made certain that this is not a concern for litigants.

Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 – Right to Strike

Preventing essential services from taking strike action is a hot-button topic.  At the end of January, the Supreme Court of Canada dealt with the issue of the constitutionality of a collective bargaining unit’s right to strike.

In December 2007, the Government of Saskatchewan enacted legislation to limit the ability of public sector employees in essential services from participating in strike action. However, section 2(d) of the Canadian Charter of Rights and Freedoms provides for the fundamental freedom of association.  The Supreme Court of Canada found that a prohibition on designated employees participating in strike action was a substantial interference with a meaningful process of collective bargaining and therefore a violation of the freedom of association.

The Supreme Court of Canada also concluded that this violation of section 2(d) was not a reasonable limit allowable under section 1 of the Canadian Charter of Rights and Freedoms.  Although the maintenance of essential public services is a pressing and substantial obligation, the legislation went beyond what is reasonably required to ensure the uninterrupted delivery of essential services and failed to provide a meaningful alternative mechanism for resolving bargaining impasses, like arbitration.

Union members should not take this case to mean that the right to strike is absolute.  Rather, the right to strike of employees in essential services may be restricted, provided that the limit is reasonable and allows for other ways to resolve deadlocks in negotiating collective agreements.

Arnone v. Best Theratronics Ltd., 2015 ONCA 63 – Bridging Until Retirement

I wrote about the trial decision in October 2014.  In this case, the plaintiff, Mr. Arnone, was 53 years old with 31 years of service when his employment as a manager ended. At that time, he was 16.8 months away from retiring with an unreduced pension.  The trial judge emphasized this in assessing the appropriate notice period to be 16.8 months.

In his reasons, the trial judge stated, “Objectively assessed, it seems to me that the most reasonable view of the situation prevailing at the time of termination would be to recognize the reality of the approaching entitlement to an unreduced pension and to factor this into a termination arrangement that included the other benefits available to the plaintiff upon retirement.” From this, it appeared as if the court was stating that the assessment of a notice period could include factors outside of those cited in Bardal v. Globe & Mail Ltd., namely “the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.”

I was somewhat surprised by this decision.  As I wrote last year, it seemed that “This decision underscores that there is no complete set of factors that go into an assessment of reasonable notice.  An impending retirement may be just as important as the employee’s age, duration of service or position.”

Thankfully, the Court of Appeal clarified that “The Bardal analysis remains the approach courts must apply to determine what constitutes reasonable notice of termination, an approach which has not included a consideration of the time between the date of dismissal and the point at which the employee would be eligible for a full pension.”

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

Written by Jeffrey Robles and originally published on the blog at http://jeffreyrobles.com. Jeffrey represents clients in the areas of employment law and personal injury in the Ontario Superior Court of Justice.