by kathyras@rogers.com | Jul 11, 2014 | Employment Law
Wrongful Dismissal and Employer Notice
Justice Conlan’s decision in Gristey v. Emke Schaab Climatecare Inc. 2014 ONSC 1798 (Ont. S.C.J.) underscores the fact there is no complete catalogue of factors that go into determining the amount of notice that would be reasonable for an employee to receive.
By way of background, if an employee is let go without cause for dismissal, the employee is generally entitled to reasonable notice – either working notice or pay in lieu of notice. There are, however, exceptions. For instance, the employer and the employee can sign an employment agreement that limits the notice period to what the Employment Standards Act, 2000 provides.
The seminal decision in Bardal v. Globe and Mail tells us that there is no formula to determine how much notice of dismissal would be reasonable in any given case. While the main considerations are the employee’s age, years of service, position and job market for comparable positions, the list of possible considerations is not fixed.
Facts of the Case – Wrongful Dismissal
In this decision, the employer dismissed Mr. Gristey, a 54 year old gas technician with some supervisory responsibilities, after 12 years of service on a without cause basis. The employer asserted that the basis for ending Mr. Gristey’s employment was a shortage of work. Yet, the employer opted not to use a temporary layoff as provided for under theEmployment Standards Act, 2000.
Instead, the employer paid Mr. Gristey 8 weeks of termination pay and offered an additional 8 weeks as a gratuitous payment in exchange for a signed Full and Final Release. Not surprisingly, Mr. Gristey refused the employer’s offer and sued for wrongful dismissal.
Issue Before the Court – Damages in Lieu of Notice
At trial, the main issue for Justice Conlan to consider was the appropriate amount of damages for pay in lieu of notice having regard to the fact that the employer no longer had enough work to keep Mr. Gristey busy.
Taking into account the Court of Appeal’s decision in Bohemier v. Storwal International Inc., Justice Conlan accepted the employer’s submission that its declining financial health should be a relevant consideration and discounted the initial assessment of a 12 month notice period by one-third to 8 months. At paragraph 59 of the decision, Justice Conlan states:
Essentially, this is a recognition (as I have said above), had Mr. Gristey’s employment not been terminated, he would have likely worked less hours during the notice period. Thus, it would not be fair to the Defendant to apply the full twelve-month notice period.
Practical Considerations
There are a couple of take-aways from this decision.
First, paying an employee the bare minimum required by the Employment Standards Act, 2000 is not necessarily going to be enough of a deterrent to prevent the employee from starting a wrongful dismissal action. There are other factors that must be considered. Competent employment counsel can help you make this determination.
Second, judges deciding a case are ultimately concerned with arriving at a fair result. This case is a good example of the analysis that a judge goes through in balancing fairness. Employers and employees alike should keep in mind that the employer’s financial health is a factor that can tip a judge’s scales in assessing the reasonable notice period.
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.
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by kathyras@rogers.com | Jul 10, 2014 | Family Law
If you have young children, part of your financial obligation will involve some sort of childcare cost. On divorce or separation, the parents will normally share this “special expense”, provided daycare is necessary due to work, education or health reasons. If you are given receipts by the daycare provider, you can claim a deduction on your taxes for daycare expenses. The rule that the lowest income earner must claim the deduction while you are living in the same home no longer applies once you separate and live at different addresses.
Sharing Daycare Expenses in Divorce or Separation
When deciding how to share daycare expenses, the parents must first determine which proportion each of them will pay — will you share it 50/50 or in some other proportion? Will you each pay your share directly to the caregiver or will one of you pay the caregiver or daycare centre and be reimbursed by the other parent? In both cases, you have to take into account the tax deduction. If one parent pays the whole amount, the other reimburses his or her share of the actual cost, once the deduction is taken into account.
Written by Simonetta A. Lanzi. Simonetta restricts her practice to family law, including matters regarding custody and access, child support, spousal support, property division and child protection, as well as uncontested divorces.
Contact Simonetta A. Lanzi
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by kathyras@rogers.com | Jun 20, 2014 | Wills & Estates
Estate Administration Tax: An Overview Before Applying for a Certificate of appointment of Estate Trustee
If you require a Certificate of Appointment of Estate Trustee, the estate administration tax (EAT) must also accompany the application to the Ontario Superior Court of Justice. There are a few exceptions for paying EAT, as outlined under Rule 74.13(2)-(4) of the Rules of Civil Procedure. The EAT is paid to the Minister of Finance and is based on the value of the deceased’s property at the time of death.
The Estate Trustee is obligated to pay a higher tax if it is established later on that the value of the estate is greater than what was originally submitted. The Estate Trustee may also get a refund if EAT was based on an estimate and was overpaid (s 3 of the Estate Administration Tax Act, 1998).
What is included in calculating the Estate Administration Tax?
Generally, the fees are based on the deceased’s assets under his or her name alone. As an example, jointly held property that passes by right of survivorship is excluded from the calculation. Benefits payable to a designated beneficiary under a “plan,” as defined by Part III of the Succession Law Reform Act and proceeds from life insurance on the deceased payable to a designated beneficiary are excluded. Real property that is located outside of Ontario is also excluded from EAT calculations. Most debts and liabilities will not reduce the value of the estate for EAT purposes, with the exception of an encumbrance registered against the real property of the deceased: s 1 of the Estate Administration Tax Act, 1998.
How are these taxes calculated?
Section 2 of the Estate Administration Tax Act, 1998 states that if the value of an estate does not exceed $1,000, then no EAT is paid.
The formula for calculating the EAT is as follows (s 2(6) of the Estate Administration Tax Act):
$15 for each $1,000, or part thereof, of the value of the estate exceeding $50,000.
The Ontario Ministry of Attorney General provides a chart detailing EAT amounts based on estates valued from $1,000 to $5 million:
http://www.attorneygeneral.jus.gov.on.ca/english/estates/pre_calculated_estate_administration_tax_table.pdf
by kathyras@rogers.com | Jun 17, 2014 | Employment Law
One of the realities of running a business is that sometimes an employee’s role has to change in order to ensure the efficient operation and, in some cases, the survival of that business. Unfortunately, despite an employer’s well-meaning intentions, this kind of business decision can result in liability for constructive dismissal.
This was the situation before the Ontario Court of Appeal in Farwell v. Citair, Inc. (General Coach Canada), 2014 ONCA 177 where a 58 year old VP of Operations with 38 years of service was returned back to his former position as a Purchasing Manager by the employer.
Employment Law: Constructive Dismissal
Unlike a wrongful dismissal, a constructively dismissed employee has not actually been dismissed. Instead, the employer has made fundamental changes to the employee’s job without the employee’s input or agreement. In effect, the changes made by the employer are so drastic that the job the employee accepted at the start of the employment relationship no longer exists. Hence, the term “constructive dismissal”, a dismissal implied by operation of law.
At trial, the court held that Mr. Farwell was constructively dismissed and awarded him damages equal to 24 months of pay in lieu of notice. The employer appealed on three grounds:
- The trial judge misapplied the principles of the law of constructive dismissal;
- The trial judge erred in her assessment of damages; and
- The trial judge erred in failing to find that Mr. Farwell did not mitigate his damages by working for the employer as a Purchasing Manager during the notice period.
Employment Law: Ontario Court of Appeal
On the first ground of appeal, the Ontario Court of Appeal accepted the trial judge’s conclusion that the demotion back to Purchasing Manager from VP of Operations was a significant loss of status and prestige that constituted a fundamental change to the employment agreement and a constructive dismissal. With regard to the second ground of appeal, the court deferred to the trial judge’s assessment of damages and concluded that 24 months of pay in lieu of notice was reasonable for a 58 year old high-level manager who spent two-thirds of his life with the employer.
As for the third ground of appeal, the court acknowledged that the trial judge may have incorrectly taken a subjective approach in assessing that the stigma and loss of dignity was too great to mitigate by returning to work for the employer. In other words, rather than objectively considering if a reasonable person would return to work under the same circumstances, the trial judge may have focussed her assessment on what Mr. Farwell thought about returning to work for the employer. The court also acknowledged that, in light of the absence of any animosity between the parties, Mr. Farwell may well have been obligated to mitigate by working for the employer as a Purchasing Manager.
However, Mr. Justice Lauwers, writing for the court, pointed out, “To trigger this form of mitigation duty, the appellant was therefore obliged to offer Mr. Farwell the clear opportunity to work out the notice period after he refused to accept the position of Purchasing Manager and told the Appellant that he was treating the reorganization as constructive and wrongful dismissal.” Herein was the fatal flaw in the employer’s case. In order to successfully argue that Mr. Farwell failed to mitigate his damages by working as a Purchasing Manager during the reasonable notice period, the employer first had to offer the position after Mr. Farwell refused to accept the imposed changes.
Employment Law: Constructive Dismissal – Practical Considerations
The take-away for employers in this case is that it is not safe to assume that the employee is always free to accept the position unilaterally imposed on him in order to mitigate his damages. Once the employee has rejected the change, the employment agreement is at an end. In order to bolster the mitigation argument, the employer must then make it clear to the employee that the very same position that led the employee to assert constructive dismissal is still available to mitigate damages.
For the employee, the take-away is that it is important to assess the workplace atmosphere before claiming constructive dismissal. Depending on the circumstances, the employee may be obligated to return to work for the employer in order mitigate his damages, despite whatever hard feelings he may bear towards the employer.
As I stated in a previous blog post, employment law, and constructive dismissal in particular, can be a lot like a chess match. It is often beneficial to have competent employment counsel advising you on how to best respond to the moves that the other side makes.
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.
by kathyras@rogers.com | Jun 6, 2014 | Family Law, Lawyers
What to expect when you are litigating – the case conference
The Case Conference in a divorce case is usually the first opportunity for parties to hear a Judge’s view of their case. If both parties have lawyers, depending on the judge, a Case Conference may be held in the Judge’s chambers (office) without the parties present. It is then up to the lawyers to convey to their respective clients what was said about the custody, access, equalization and other financial issues being discussed. At times, a judge will then speak directly to the parties in the courtroom.
If the Case Conference is in the Courtroom, the Judge will sit at the front of the room, at a raised desk. In front of him or her are several court staff – the deputy (who escorts the Judge into the courtroom through a special door); the registrar and the court reporter, who records everything that is being said. The recording is not published.
The parties and, if they have one, their lawyers, sit facing the Judge and staff. Usually, the lawyers will make submissions and the parties do not speak; at times, a Judge might ask you a question directly. You should stand to respond unless told otherwise by the Judge. Then the Judge will give his or her views of the case, and make recommendations. Orders can be made on consent at the conference or, if proper notice has been given, the Judge may make an order even if the both sides don’t agree to it. Child support may be ordered even without the consent of both parties depending on the circumstances.
Conferences require Briefs, but these documents (which follow a specific format) are not kept in the court file after the hearing. They are returned to the parties after the conference or shredded. It is essential to prepare detailed and up-to-date Briefs that inform the Judge, and the other side, about the facts you are relying on and what position you are taking on custody, child support, equalization and any other issues involved in your divorce.
A family law case will go through several conferences, usually at least two or three, before being placed on a trial list, to give the parties ample opportunity to resolve the issues on consent.
Written by Simonetta A. Lanzi
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by kathyras@rogers.com | Feb 25, 2014 | Lawyers
Senior & Managing Partner
Michael is the senior and managing partner at Reilly and Partners. He has been certified by the Law Society of Upper Canada as a specialist in family law. An accomplished litigator with more than 25 years of legal experience, he currently restricts his practice to family law. Michael has successfully argued cases at every judicial level in Ontario, including the Court of Appeal.
Notwithstanding his success in the courtroom, family law often requires a less adversarial approach and Michael remains focused on early resolution.
Mediation should always be seriously considered, especially by those who may choose or have no alternative but to represent themselves in a family law dispute. Michael is a family mediator who not only has an extensive background in family law, but also mediation training and over 10 years of mediation experience. In fact, Michael has successfully resolved over 90% of the cases in which he has acted as a mediator. Although a lawyer is not required to participate in the mediation process, independent legal advice at the conclusion of the process is strongly recommended.
Michael spent two years in undergraduate studies at the University of Toronto, before accepting an offer for early admission into Osgoode Hall Law School. He graduated from Osgoode Hall in 1990 and worked in a mid size litigation firm in downtown Toronto for the next few years. In 1994 he started his own law firm in the east end of Toronto. Over the next 20 years, he added 4 lawyers and relocated the firm to its current location in Pickering Village, Ajax.
Michael is a devoted family man who is married with three children. He has been actively involved in the community for over 30 years including coaching, refereeing and sponsoring youth sports.
Please feel free to contact Michael by telephone at (905) 427-4077 ext. 24
email: mreilly@reillyandpartners.com
by kathyras@rogers.com | Feb 25, 2014 | Lawyers
Family Lawyer
Simonetta has been certified by the Law Society of Ontario as a specialist in family law. She has over 25 years of legal experience. Her goal is to help clients through the sometimes overwhelming issues that arise from separation and provide realistic, objective and cost-effective advice.
Simonetta restricts her practice to family law, including matters regarding custody and access, child support, spousal support, property division and divorces. She has a strong network of professionals to work with clients and provide guidance and specialized advice on parenting, tax issues, financial projections, business valuations, etc.
Simonetta is collaboratively trained and is the current Chair of the Durham Collaborative Practice group. A firm believer in working through issues cooperatively and collaboratively, Simonetta can assist you in resolving issues through agreement. There are times when litigation is the best option and Simonetta can assist in bringing the matter to a conclusion with the assistance of the Court. She has experience at all levels of court, including the Court of Appeal.
Simonetta has an honours B.A. from the University of Toronto, a Master of Arts from Dalhousie University and her law degree from Western.
Simonetta has found her greatest joy in her family and devotes as much time as possible to her daughters and her husband. Her passion is cooking. She hopes her golf swing will magically improve.
Simonetta was an editor for Durlaw, the newsletter of the Durham Law Association. She sits on a number of boards, has written for various publications, and is actively involved in the community.
Please feel free to contact Simonetta by phone at 905.427.4077 extension 23 or her clerk, Diane, at extension 28. Simonetta’s email is slanzi@reillyandpartners.com
Certified Specialist Family Law
by kathyras@rogers.com | Feb 25, 2014 | Lawyers
Family Lawyer
Marc focuses his practice on family law.
He has years of experience handling all aspects of family law including prenuptial agreements, divorce, child custody, support, and division of property. He represents clients in the negotiation of separation agreements out of court and also represents clients in family court in Oshawa and Toronto on a regular basis.
In addition to representing clients in family court, Marc is an experienced collaborative family lawyer. He has completed Level Two Collaborative Family Law training and is a member of Collaborative Practice Durham Region (www.durhamcollaborative.com), the association of Durham Region collaborative lawyers. Collaborative Family Law is a way of resolving family law disputes outside of the court system through a series of four-way meetings between the separating spouses and their lawyers. The goal of the process is to achieve a negotiated settlement that takes into account the interests of both spouses and their children while avoiding the negative side-effects that adversarial court proceedings inevitably have on the family.
Marc was born and raised in Toronto. He studied International Relations at Trinity College, University of Toronto, where he obtained his Bachelor of Arts degree. He also has a Juris Doctor degree from the Faculty of Law at the University of British Columbia in Vancouver.
When not at work Marc enjoys cycling and spending time with his family.
Marc may be reached at 905-427-4077 ext. 27
email: marcd@reillyandpartners.com
by kathyras@rogers.com | Feb 24, 2014 | Lawyers
Employment Law & Personal Injury
Jeffrey graduated from Osgoode Hall Law School in 2000. He then completed his articling year at a corporate/commercial and litigation firm in Toronto. Jeffrey joined Reilly & Partners Professional Corporation as an Associate after his call to the Bar in 2002 and became a Partner in 2008.
Recognized by the Law Society of Upper Canada as a Certified Specialist in Civil Litigation, Jeffrey represents clients in employment, disability insurance and personal injury matters at all levels of the court in Ontario. Jeffrey also acts on behalf of clients in matters before the Ontario Human Rights Tribunal, the Ministry of Labour, and the Canadian Human Rights Commission.
Jeffrey is very active in the community. His past involvement includes organizing fund raising campaigns for Epilepsy York Region and the Heart and Stroke Foundation, and he was a member of the Diversity and Community Engagement citizen advisory committee for the Town of Ajax.
When he is not spending time with his wife and three young children, Jeffrey enjoys playing the guitar and ukulele, and martial arts training. He currently holds a second degree black belt in karate and also trains in Brazilian Jiu Jitsu.
Please feel free to contact Jeffrey by telephone at (905) 427-4077 ext. 29
email: jrobles@reillyandpartners.com
You may also follow Jeffrey on his blog, WorkLawyer.ca Twitter (@Work_Lawyer), and on Facebook (@WorkLawyer.ca).
by kathyras@rogers.com | Feb 24, 2014 | Family Law
Reilly and Partners Family Law
If you are currently going through a family law dispute, you already know how difficult it can be to keep your emotions in check. You may be having a hard time making decisions or reaching acceptable resolution of matters with your former spouse or common law partner.
Family Lawyers Help You Work Towards Resolution
At Reilly & Partners our family law lawyers understand what you’re going through and want to reassure you that having such complex feelings when going through a separation or divorce is completely normal. After all, the decisions you make now will change your life for many years to come. For this reason, our goal is to offer you the advice of experienced and compassionate family law lawyers who will help you reach peaceful and practical resolution of your family law dispute. The lawyers of Reilly & Partners can help you with family law matters such as:
- Divorce
- Separation
- Cohabitation or Prenuptial Agreements
- Child custody/access
- Spousal support
- Property distribution
- Child Support
Reilly and Partners Ajax, Family Law Lawyers Are Ready to Help
Getting a family law lawyer from our firm involved in your situation doesn’t mean that you want to start or continue a conflict; it simply means that you’re ready to work toward a resolution so that you can move forward with your life. If you’re ready to put conflict behind you in favour of a fresh start, contact Reilly & Partners to see how our family law lawyers can help.
There is usually a significant delay from the time two people decide to separate and the granting of a divorce judgment. In the interim, there are many issues which must be addressed including property division, child and spousal support, custody and access, and possession of the matrimonial home. Where one or more of these issues exist, it is preferable to negotiate at least a temporary and, if possible, a permanent solution. The terms of any agreement reached by the parties is often incorporated into a separation agreement.
Spousal and Child Support
Whether spousal support is appropriate and, if so, how much depends on a number of factors including the length of the marriage, the income and income potential of both spouses and the assets each will have after the matrimonial property has been divided.
Child support is governed by the Child Support Guidelines. The amount of support is determined by using the support payer’s income to the “table amount” of support. This is the basic monthly payment set out in the Guideline tables which is based on the payer’s income and the number of children for whom support is payable.
In addition to table support, there are provisions in the Guidelines for additional support payments or “add-ons”. These include medical expenses, post-secondary education expenses, extraordinary extracurricular activities and daycare expenses.
One of the most difficult issues to consider when a marriage ends is who will have custody of the children. Although most separating spouses put the best interests of the child first and resolve this issue without acrimony, sadly this is not always the case. If there are no abuse issues, it may be helpful to consider mediation to help resolve custody and access disputes. Reilly & Partners does offer mediation services.
A separation agreement is a contract or agreement which is often entered into by separating spouses. It is not necessary to enter into such a contract in order to be considered legally separated, however, this type of agreement is very useful.
Pre-nuptial Agreements and Marriage Contracts
Issues which are dealt with in a pre-nuptial agreement typically include division of assets, spousal support, and the financial contribution of the spouses to the household. Pre-nuptial agreements are particularly useful in addressing perceived inequities in the Ontario Family Law Act, which governs property division on marriage breakdown in the absence of a pre-nuptial agreement or marriage contract. One such potential inequity is how the matrimonial home is treated (see Property Division). A marriage contract is essentially a pre-nuptial agreement that is entered into after marriage
In the absence of a pre-nuptial agreement or marriage contract, division of marital property is governed by the Ontario Family Law Act. Section 5 of the Act provides that each spouse calculates the net value of assets less debts on the date of marriage and on the date of separation. Each spouse then calculates the amount by which his or her assets increased or decreased over the course of the marriage and any difference is equalized. In other words, the spouses share what has been accumulated during the marriage. This formula is subject to certain exceptions such as inheritances and gifts from third parties. The most important exception involves the matrimonial home the value of which may not be deducted as being owned on the date of marriage. It is this exception which provides the most incentive for having a pre-nuptial agreement or marriage contract.
by kathyras@rogers.com | Jun 16, 2014 | Lawyers
Reilly and Partners Personal Injury Law Ajax, ON
Personal injury occurs where you have suffered some form of injury, either physical or psychological, as the result of an accident. When you suffer a serious injury, the impact on your life can be overwhelming. Many difficult decisions have to be made. Many questions will arise. Who will pay for the cost of my therapy? How can I recover these out-of-pocket expenses? What can I do about my loss of income? What compensation am I entitled to?
It is difficult to assess damages in the early stages of a personal injury case. In most circumstances the true cost of an injury is unknown until you have received medical treatment, therapy and rehabilitation. That is why it is important to seek legal representation at the beginning of the process to ensure you are receiving the necessary funding for the treatment required.
There are many factors to consider when assessing the value of a personal injury claim including the nature of your injury, the cause of the injury and the impact that the injury has on your ability to work and on the activities of daily living.
Common damages awarded in a personal injury case can include;
Medical Treatment – The cost of medical care associated with the accident including, reimbursement for expenses for medical treatment you have already received and compensation for the estimated cost of medical care you will require in the future as a result of the accident.
Pain & Suffering – You may be entitled to compensation for pain and suffering you endured, or will continue to endure, as the result of the accident.
Income – You may be entitled to compensation for the accident’s impact on your salary and wages in the past and in the future.
Home Maintenance Services – You may be entitled to compensation for housekeeping and home maintenance services that you are no longer able to perform as a result of your injuries.
Property Loss – If any personal property was damaged as a result of the accident, you may be entitled to reimbursement for repairs or compensation for the fair market value of the property that was lost.
Family Member Claims– Family members may be awarded compensation for their financial losses related to the claim.
Whether you are injured in a slip and fall, an assault or even as a result of a faulty product, Reilly & Partners Professional Corporation has the experience backed by results to help you find the answers. If you have been injured, please contact us for a free consultation to discuss how we might be able to help you.
by kathyras@rogers.com | Feb 23, 2014 | Lawyers
Reilly and Partners Civil Law
Ajax, Pickering, Whitby & Durham Region
If you need a lawyer to guide you through a civil litigation matter, Reilly & Partners can help you resolve your case. Whether you’re dealing with a personal injury, a property dispute, or a breach of contract, you don’t need to navigate the complex waters surrounding a lawsuit on your own. Our civil litigation lawyers have the skills and experience to effectively represent you in court.
We understand that legal battles can be confusing and emotionally taxing. That’s why our lawyers will work to facilitate a timely resolution to your lawsuit. When you work with Reilly & Partners, any questions you have about your case will be answered patiently. You can expect prompt, responsive, and professional service from the moment you become a client.
If you’re involved in civil litigation, turn to Reilly & Partners to protect your rights and put your best interests first. To discuss your case, call today to schedule a consultation.
Civil litigation is the area of the law relating to the enforcement of your rights in the civil courts. This is a very broad area of the law and includes cases such as:
- claims for monetary compensation for injuries caused by the negligence of others, including:
- claims relating to falls on icy or poorly maintained property,
- defective products;
- employment law disputes involving:
- contract disputes such as disability insurance claims,
- debt collection,
- wrongful dismissal,
- constructive dismissal, or
- enforcing confidentiality and non-competition agreements;
Our firm has extensive experience in this area of law, representing both plaintiffs and defendants. While we strive to resolve cases by negotiating settlements in a timely and cost-effective manner, we have an excellent track record representing our clients at trial and on appeals.
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Civil Litigation Articles
