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Welcome everyone this is Amer Mushtaq from YouCounsel

There is a term that is often used in court cases (in civil cases) it’s called Lawyer of Record.  What does this term mean? What are its implications? What is it that you need to know?  We will discuss that today.  Before we begin, we have the disclaimer that this course is not legal advice.  For any specific questions please contact your lawyer or paralegal or contact your Law Society

Lawyer of Record: what does it mean?  We will define that term.  We will explain it—how do you appoint? How do you remove a lawyer of record? And, what are some of the consequences if there is a removal order issued for the removal of a lawyer of record?  We will talk about that.  Let us begin with the meaning of “lawyer of record”.  Lawyer of record is essentially a lawyer whose name appears in all of the court documents on behalf of a client.  This happens usually when someone commences a court action and they go and hire a lawyer and that lawyer drafts documents, submits it in the court system and serves it on other parties.  In those documents that lawyer if he is retained to represent you as a party for the entire matter he or she will put is or her name as the lawyer of record.  Every court document will show that that specific lawyer represents that specific party.  If there are any notices or any documents that need to be served or sent to that party they are directed towards that lawyer.  Therefore, essentially it’s a lawyer for the purposes of that court action.  He or she is the lawyer of that specific party and that’s what the court records indicate.  How do you appoint and remove a lawyer, we’ll talk about that.

There are three simple ways of appointment or removal.  If you already have a lawyer and he or she is your lawyer of record and when you appoint another lawyer then that’s one way of removing that lawyer and appointing the other one.  There is a specific mechanism specified in the Rules of Civil Procedure.  The new lawyer has to serve what’s called a Notice of Change of Lawyers on the previous lawyer and on all of the parties or their lawyers and then file it with the court.  That announces and puts in court records that there is a new lawyer who has been appointed.

There is another method of changing or removing the lawyer.  It is called Notice of Intention to Act in Person.  You are a party.  You were represented by a lawyer.  He or she is the Lawyer of Record.  At some point you decide that you no longer require that lawyer’s services and you wish to represent yourself, then, in that case there is a specific notice called Notice of Intention to Act in Person.  You serve that Notice on the lawyer, i.e., the previous lawyer and all of the lawyers of the other parties.  Then you file it with the court.  That ensures that you have the capacity or ability or permission to represent yourself. 

In case of a Corporation, as you may know—we have another lecture on this—but just to briefly tell you that a Corporation cannot represent itself, unless it has the permission of the court. The third category where a lawyer can be appointed or removed is if the Corporation removes it’s lawyer and then seeks the permission of the court to say that the Corporation intends to represent itself and the court grants that permission, then that’s the third mechanism by which the lawyer is appointed or removed.

The fourth mechanism is by Court Order.  The last one is by way of a Court Order.  The first three are by understanding and by mutual agreement.  The last one through Court Order is usually when there is some sort of conflict and the party is unwilling or is not reasonably agreeing for the lawyer to remove himself or herself.  Then there is a motion that needs to be brought in court for that specific order.  The court issues an order which basically says that that specific lawyer will no longer be the Lawyer of Record for a party.  That is the fourth scenario in which the lawyer could be removed.  Just so you know the fourth scenario, as a way of example, arises in some cases when the lawyer and the party have a break in relationship either because of their understanding of how the case needs to proceed or the party may have lost confidence in its lawyer or the party may not have paid legal fees to the lawyer.  Some of those issues arise and that leads to lawyers seeking an order from the court to have himself or herself removed.   

With respect to the lawyers removal and appointment—all these matters, including Lawyer of Record, Rule 15 of the Rules of Civil Procedure of Ontario is the one that deals with that.  We have discussed Rule 15 in another lecture which was on self representation.  This Rule is specific to all kinds of representation and Rules 15.03, 15.04, 15.05 and 15.06 are sub rules of Rules 15 that specifically deals with the appointment of a lawyer, the removal, the intention to act in person or a corporation’s desire to represent itself. 

You can have a look at that.  I will quickly show you the slide where these rules are and then you can review them on your own later on.  One thing to keep in mind, which is important, is that once the Court has issued a removal order you have literally 30 days, and if it’s the order of your lawyer you literally have 30 days to either appoint another lawyer or serve the Notice of Intention to Act in Person or in case of a Corporation, to get the permission to self-represent. 

This timeline is important.  This timeline is triggered when you have been given or you have been served with the Notice with the Order from the court that so-and-so lawyer is removed, then within 30 days you have to either appoint another one or if you want to self-represent then the Notice for that.  If you’re a Corporation and want to self-represent, then, you have to get permission from the court to self-represent or hire/appoint another lawyer.  That needs to be done in 30 days.  If it is not done within 30 days the court actually has the power to dismiss your case altogether or stay it or whatever it deems appropriate.  These timelines are important to keep in mind in case that there is a removal order for a lawyer. 

These are some of the basic things that we wanted to touch upon so that you understand the purpose of a “lawyer of record” and the circumstances of its appointment and removal.  Any questions or comments, please post on our website or on the YouTube channel and if you require any legal advice by all means contact us.  Thank-you for listening.

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Welcome everyone.  This is Amer Mushtaq from YouCounsel.

Today we’ll talk about some of the things that you must consider when you need to hire the best, the topmost employment lawyer in Toronto.  The principles that we will discuss, I believe, are equally applicable if you intend to hire a lawyer—let’s say in a family law area or a criminal lawyer.  The examples in this lecture all focus on employment law.  Before we begin we have the usual disclaimer that this course is not legal advice.  If you have any specific questions, please contact your own lawyer or your paralegal.

Let’s start by asking these questions: what is the function of the lawyer? What does a lawyer do for his or her client?  We respond to this question as follows: a lawyer helps clients achieve his or her goals in the shortest amount of time by spending the least amount of client’s money.  Now this principle seems to be rather straightforward but from our experience, and you will notice from experience of others, is that oftentimes parties lose sight of this basic principle when they’re engaged in legal process and it happens all the time when parties are spending unnecessary time in a legal process and it’s not helping them out. So, let’s unpack both of these terms one by one.

Let’s talk about the shortest amount of time.  We know that time equals money.  Time is valuable when you’re talking about time in the legal system/the judicial system.  What are some of the things that you want to keep in mind?  You want to get in, you want to get what you want out of the legal system and you want to get out.  Essentially you do not linger in the judicial system.  I can assure you that the longer a party stays in the judicial process the more it loses.  This will apply to every single case.  I have seen it happening to every single case.  I can assure you that if you do research on this issue you will find the same. 

There is a reason why parties who are successful at trial (who have won their cases) don’t walk out happy at the end of the day.  It’s because they end up losing a lot more by spending unnecessary time in the judicial system.  You will hear arguments against this principle.  One example I can give you, is let’s say you are a company and an employee or a former employee sues your company.  The lawyer may give you advice to say: let’s drag out / drag on the judicial process making the plaintiff’s / the other party’s life difficult—make that person bleed time and money and cause this person stress and that’s the best strategy.  I can assure you that it doesn’t work – it doesn’t work in the sense that when you as a company are making the other side suffer or you as a party are making the other side suffer, you are doing it at your own cost as well.  You are bleeding money and time as well.  You are focused on a fight that is unnecessary.  Also, at the end of the day when somebody else / when the other party is losing time and money, that does not necessarily translate into your success.  This argument that staying in the judicial process for long may help you in some way is not correct and you should not buy it.

With respect to cost, I think it’s important to keep in mind: what are your true costs in the judicial process?  We have, sort of, defined it for you.  Cost equals (1) the money you have received or saved in the judicial process, (2) less your legal fees and (3) less lost opportunities to earn money elsewhere.  This third point is often neglected.  It’s not a philosophical point.  We have actually seen it happening in many cases that we dealt with.  Especially in the employment law world, where an employee loses a job and he ends up or he has some other grievance against the employer and he sues the employer,then continues the fight just to sort of prove a principle or just to get the dollar amount that this person (this client) wanted to get out of the company because he or she believed that they were entitled to that amount of money.  In that process these clients/these employees lose focus on other things in their life—whether it’s the relationship with family or friends, whether it’s to focus on finding another job whether it is to find other courses, whether to start a business and all of those—because you’re so entrenched in your legal action that your mind, your focus stays with that until the process is completely over.  There are a number of lost opportunities where you can focus on.  You don’t end up doing that and that’s a significant harm.  That is something that must be taken into account when you’re engaged in the legal process.  That is not to say that you should not engage in the legal process but my point is that there is a purpose; there is a reason why you engage in the legal process and you should not have unrealistic expectations out of it.  You get what you want and then you get out.

Another point that I wanted to make is answering this question: should you come to the legal system, should you engage in the judicial process to fight for principles?  The straight answer is no—absolutely not.  I think the important thing to keep in mind is, the judicial system is fundamentally about awarding money if you are harmed in any way.  The role of judicial system really is to consider that harm, monetize it in some way and award you that money.  Peripherally you can have success on some principles.  That’s not essentially what the court does.  Keep that in mind.  My advice is do not fight for principles in court, if you do not believe or your client does not, or your lawyer does not believe that there is significant money that you will get on top of that. By all means fight for principles,if you have excess money—you have hundreds of thousands of dollars lying around—and you can’t imagine a better purpose then to prove your point in the judicial system by all means do so.  For ordinary people, for everyday people who are involved in the day to day grunt work of life, who have bills to pay, who have financial obligations—just the fight for principles is not a good way to spend your money and time.  If you really want to be a person who wants to fight for principles, I think you should become an activist—there are other avenues, but  coming into the judicial system is not a recommended course of action.

We talked about some of the things (the goals) that are practical from a judicial system and how you accomplish those.  It was an important discussion because once you are clear about your own objectives what is that you want out of the judicial system you will be in a better position to hire the lawyer that meets your objectives or helps you get to your objectives. 

Now we’re turning our focus on hiring the lawyer and the basic point I want to make is that you know lawyering, or a relationship with the lawyer is essentially a relationship of trust and it’s no different than your relationship with any other service provider.  It’s not specific to lawyers.  If you hired a plumber, if you hired an electrician or you go to your doctor or an accountant – these are all service providers.  You hire them because they have certain expertise that you don’t.  At some point you will have to rely on that expertise, and you will have to vest your trust in that person. So, when you’re dealing with a lawyer, when you are talking to a lawyer to see if you want to hire that person, you must get an understanding from your own, you should ask the specific question to yourself: whether this is the person that you would like to trust and you will put your legal issues in his or her hands.  The other part that you want to keep in mind is that a good lawyer must be the right fit for you, and it’s important because oftentimes people think that once you hire a lawyer and you have given your problem to the lawyer, you are hands off,  the lawyer is now going to do everything that needs to be done, to get you what you want.  That’s not how it works.   Lawyering, and the fight in the legal action is a collaborative process.  There are a number of things that a lawyer will be needing from you.  He/She may be needing evidence, may require documentation or may require your input—your testimony.  It’s  collaborative work and if you are a right fit and the lawyer is a right fit for you then you will be more efficient and more productive.  It’s an important thing to keep in mind.

Recap:

With that background, what are some of the qualities that you must look for in a lawyer? 

We will suggest that your lawyer must have the expertise in that area.  This is an important one.  Let’s say you know a great criminal law lawyer who has helped you in your criminal matters and was very effective.  That does not mean that you should hire that lawyer for your employment law matter or vice versa because law is a specialized field like many other fields.  You will not ask your family doctor to do your gallbladder surgery because that’s not where his expertise lies.  Similarly, you should not ask a criminal lawyer to represent you in an employment law matter or   an employment law lawyer to represent you in your family law matter.  Expertise in that area of that specific legal issue is important. 

The lawyer must have integrity.  You should feel when you have met that lawyer that this lawyer will consider, will put your interest over and above his or her own interest.  Integrity is essential. 

Finally, the lawyer must be responsive. And I am using this responsiveness term in a broad sense—responsive to your questions, educating you on your issues, working with you in a timely manner and with a collaborative effort in achieving the goals of your issue.  These are all the things that the lawyer must be responsive to.  All of these qualities you must keep in mind when you’re engaging a lawyer. 

I want to leave you as conclusion with a quote that I recall from my Navy days.  This code was inscribed on the bridge of a ship that I used to work on.  It read as follows: “A Superior Sailor is one who uses his Superior Judgment to keep out of situations requiring the use of his Superior Skills.”  This applies to law as well and to a lawyer.  Your best lawyer is the one who has superior judgment and who uses that superior judgment to get you the results that you need—whether you need to go to trial or whether you need to settle.   That’s what you’re looking for

Hopefully, we provided you some insight about how to select a good lawyer and we look forward to your comments on the channel or send us an email or contact us.  Our contact information is provided here.  Thank you for watching.

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Welcome everyone this is Amer Mushtaq from YouCounsel.

Oftentimes people make assumptions about the nature of their employment relationship. Sometimes that assumption is correct.  Sometimes it’s not.  When that assumption is not correct, a lot of people potentially lose certain rights that they would have been entitled to otherwise.

This lecture we will elaborate on the difference—why the difference between these three categories employee, independent contractor and dependent contractor matters.   In the next lecture we’ll talk about how you determine which category you belong to, then who has the ultimate say, who has the power to decide what is the specific category of your employment relationship.   Before we begin, a disclaimer that this course is not legal advice.  If you have any specific questions about your issues you must contact your lawyer or paralegal and if you don’t know anyone directly you can contact the Law Society of Canada and Ontario and they can direct you to a lawyer or a paralegal.

The difference between these categories matters.  Why? Because under each category you will have different rights and under each category you will have different obligations.  Let’s start with employee rights.  The most important, well not the most important but one of the important rights falls under legislative rights—which means if there is a specific legislation that applies to your circumstances you may have rights under that.  A common example in Ontario is Employment Standards Act which applies to every employee—every non-unionized employee.  You have rights under the Employment Standards Act, then you have rights under common law—which is “judge-made” law and you may have rights under that.  A common example is termination notice which we’ll talk about in more detail but that could be your right under employment, under the employee rights category.  Let’s talk a little bit more about the legislative right and we’ll give you some examples.  Some rights are termination pay, overtime pay, public holiday, vacation, parental leave and employment insurance benefits—if you look at the Employment Standards Act.

Employment Standards Act is the legislation in Ontario for non unionized employees.  You scroll through and you will see there are a number of parts here that provide details of the kind of rights that you as an employee are entitled to.  For instance, hours of work and eating period in part 7, part 8 is about overtime pay, part 10 is about public holiday pay and vacation pay.  Look at part 14—leave of absence.  You will notice the kinds of leaves that an employee could be entitled to—pregnancy, parental, family, medical organ donor, family caregiver leave—all of these categories are leaves that are available to an employee.  If you are considered an employee, similarly, employment insurance benefits.  You may already be familiar with some of these benefits.  You could be entitled to illness benefits if you are ill and I believe they run up to 15 weeks or so, you have employment insurance benefits in the category of pregnancy and maternity and parental leave.  Then, of course, you have employment insurance benefits when you are terminated without cause and I believe they run up to about 10 months—depending upon where you live.  All of these rights are available.  These are legislated.

Another example could be workers compensation rights.  Workplace Safety and Insurance Act in Ontario covers rights for the employees who are injured at work.  You may be entitled to those rights if you are considered an employee.  Similarly, you have rights under common law.   I’ve given you the example of termination notice which is the most important one because if you are entitled to termination notice—depending upon the application of certain factors—you may be entitled to as high as 24 months or sometimes a little bit even more than that determination or severance pay.  Common law rights are important.  Employee obligations are the opposite or the other side of the coin (legislative obligations).  As we talked about it in the Employment Standards Act, hours of work is an example where you are required to work certain hours.  Production environment is a common example where, as you may know, factory workers are working on production lines.  They have to be on that line for a specific time.  Then there is a break after a certain time period which must be provided to them.  They are required to work those hours and then if required to work overtime hours, you are supposed to do that.  Those are some of the obligations under legislation similarly you have common law obligations—duty of loyalty towards your employer is one obligation, duty of confidentiality is another and there are many more other obligations that you have if you are considered an employee.

If you are not considered an employee and you are considered an independent contractor, what kind of rights do you have?  You have no legislative rights—that means the Employment Standards Act that we just talked about would not apply to you if you are an independent contractor.  You cannot go to the employer and say, “hey I’m entitled to 2 weeks of pay because the (ESA) Employment Standards Act says so.  Because you’re an independent contractor, similarly, you’re not entitled to paternity or you’re not entitled to overtime pay.  All of those things you are not entitled to.  What is it that you are entitled to if you’re an independent contractor? Your contract, your specific contract, that you have entered into with the employer, i.e., with the company that’s what prevails.  If the contract defines what your termination rights are or your resignation obligations are then those are your rights and those are your obligations.  If you are entitled to overtime, it will be specified in that contract.  It is very unlikely that you may be entitled to overtime in independent contractor arrangement because independent contractor as the name implies—you are quite independent of the employer or the company and usually they have no control over the kind of hours that you will work and when you will work those are usually left to the independent contractor.  Similarly, your wages will be defined in that contract and your vacation.  Anything and everything that is put in that contract is your right.  You don’t have the legislative right that we went through in detail or which applies to an employee.  Similarly you have no employment insurance benefits.  I mean, there are some exceptions but please understand that by default if you are considered an independent contractor you will not be entitled to any employment insurance benefits.  There are some exceptions and you can look them up in the Employment Insurance Act.   There are some cases where the independent contractor can remit certain payments for the E.I. and could be entitled to it but those are exceptions—those are not the norm.

Jumping on to dependent contractor.  Dependent contractor is sort of a category between the employee and the independent contractor.  What kind of rights and obligations do dependent contractors have?  Well, again, the dependent contractor has no legislative rights.  No rights under Employment Standards Act, no WSIB.  With respect to common law rights, here’s where it gets interesting.  A dependent contractor may be entitled to certain common law rights and in the case of termination notice for severance.  A dependent contractor may be entitled to that.  It’s an important thing to note that this is a category which looks much like an independent contractor but it’s not.  Again, with respect to employment insurance benefits, dependent contractor is not entitled to it but there are some exceptions which are similar to what an independent contractor category entails.   

Recap:

 Just talking about you know these categories, it is important to know which category you fall under because then you would know what kind of rights and obligations you have.  I’ll give you an example of one of my clients who contacted me some time ago.  He was in the movie production business.  He had his own company and he worked for one specific company and provided this production unit services.  He will go to the location and do all the setup and everything that he needed to do.  There was no supervisor looking after his work.  He will just go and do his work, invoice the company and then get paid. He knew from the outset and the company knew that he was not entitled to any benefits under Employment Standards Act.  He will have to negotiate his own vacation and time off.  The very key was in his understanding.  He had the impression that he was an independent contractor. He approached me for some other employment matter.  As I was interviewing him and I explored more about the nature of his employment relationship, I understood that it was not really an independent contractor but a dependent contractor relationship.  On the basis of that determination we were able to get him a significant amount of severance because he was a long service contractor—a dependent contractor for that company.  Understanding the difference between these categories is essential.  It’s important especially if you are terminated and you may not understand the kind of rights you may be entitled to or you make the assumption that you are an independent contractor and therefore not entitled to any of the rights—termination notice for instance.  So it is very important to make that distinction. 

In the next lecture you will learn how do you know whether you are an employee, whether you are an independent contractor or a dependent contractor we’ll talk about it and who decides?  Is it the employer that decides whether the nature of relationship is an employer/employee relationship?  Is it you the employee or the contractor who decides the nature of that relationship?  Is it Canada Revenue Agency?  Canada Revenue Agency has quite significant stake in the definition of how the nature of relationship is defined because on that basis they will get their taxes.  And finally whether it’s the courts that decide upon the nature of your relationship.  The answer is really it’s one and all.  Each one of them has a role, has some stake, has some rights in deciding the kind of relationship you are in.  But ultimately it’s the courts that will decide what is the nature of that relationship and to understand that please stay tuned for the next lecture we’ll talk about it and hopefully this basic concept was useful, understandable. 

If it’s not clear or if any if you have any questions or comments, please contact us.  If you require any specific consultation about your issues you can contact us through Clarity or directly through our firm, Formative Law.  Look forward to talking to you in the next lecture.  Thank-you.

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Welcome everyone.  This is Amer Mushtaq from YouCounsel. 

Today we’ll talk about choosing the appropriate court or tribunal or judicial body when you believe that you have been wrongfully dismissed from your employment and you have a case against your employer.  Before we begin, just a quick disclaimer that this course is not legal advice.  If you have any specific questions about your issue you must contact your lawyer or paralegal.  If you don’t know one, we have provided the link here for the Law Society of Upper Canada, who can refer you to someone.

So you are an employee who has been working in Ontario.  You have been wrongfully dismissed.  You believe that you have a case against your employer.  Then where do you go? 

This lecture is really directed towards people who have been living in Ontario.  The principles are not much different in other provinces.  The only thing you have to watch for is the specific employment related legislation in your province and how does that apply.  You may want to listen to this lecture, get the basic principles and then review the specific legislation in your province.  But the examples we’re giving here are relating to Ontario legislation.

Why is this important?  It’s a fundamental issue.  Why is it a fundamental issue?  Because if you end up choosing the wrong Court, it could have significant negative consequences towards the outcome of your case.  One of the consequences could be that your case may simply get thrown out.  You fight your case all the way and you’re before the judge.  At that time you may realize and the judge will point out that he or she does not have any jurisdiction—meaning does not have the power to give you what you’re asking.  You have wasted significant time and money to fight or pursue the case in that specific court.

The other factor to keep in mind is additional cost: of course the time and the cost.  If you are in the wrong court and let’s say you have the opportunity to withdraw the Claim from that Court and go to the right one.  By that time you have incurred some costs that you cannot recover and of course you have lost time.  Another thing that can happen is that you may not, if you end up in the wrong Court i.e., the wrong setting /wrong judicial body, you may lose the opportunity to get out of there and go to the right one.  You may be stuck in that specific jurisdiction where you have commenced a court action and it could have significantly grave consequences if that’s the case.  We will explain that to you by way of an example further down the line. 

Let me give this point a meaning.  Let’s look at the Employment Standards Act.  I hold it out here already this is the legislation that applies to Ontario employees called Employment Standards Act.  You can google it.  When you find it, you scroll down to Section 97.  Right here sub (1) “An employee who files a complaint under this Act with respect to an alleged failure to pay wages or comply with Part XIII (Benefit Plans) may not commence a civil proceeding with respect to the same matter.”  An employee files a complaint under so it’s exactly saying what I just said that if you have filed a complaint under the Employment Standards Act, then you cannot go to court (a civil proceeding is going to court), you cannot go to court.  You have the choice of either this or going to the court.  Here is the part that I want you to look at more closely, subsection (4) “Withdrawal of complaint – Despite subsections (1) and (2), an employee who has filed a complaint may commence a civil proceeding with respect to a matter described in those subsections if he or she withdraws the complaint within two weeks after it is filed.”

It is very clear that once you file a complaint with the Ministry of Labour you literally have the window of two weeks to withdraw that complaint.  If you don’t withdraw it, in case when you realize that you have to go to court and not to the Ministry of Labour, then you literally have two weeks to withdraw it.  If you don’t withdraw it then you are stuck with the jurisdiction of the Employment Standards Act.  As I said we’ll explain to you how massive this issue could be once we cover an example.  No opportunity to go to another court.  And if you end up in the wrong court or the wrong judicial body there may be situations where your damages could be significantly less.  There’s a lot to lose if you choose the right the wrong court or judicial body.  It’s an important issue that you need to deal with at the outset of your case—before you actually even go and file your complaint with a court.

Here are some scenarios that we’ll cover today—if you are a unionized employee or non-union employee where do you go to?  Whether you go to Court or the Ministry of Labour – that’s another topic we’ll cover here – whether you go to court or Human Rights Tribunal Of Ontario (HRTO), whether you go to the CLC (CLC essentially means Canada Labour Code—a legislation just like the Employment Standards Act that I showed you.  You can look it up online Canada Labour Code versus Court or Tribunal or Ministry of Labour.  Then the issue about choosing between Ontario Human Rights Tribunal versus Canada Human Rights Commission and Small Claims Court versus Superior Court.  We’ll cover these topics.

If you are a unionized employee, very important to keep in mind, the only place and the only process that is open to you if you are terminated is called arbitral process.  It’s through the union.  You cannot commence it through your own private lawyer.  What you do is—through your union you file what’s called a grievance.  That’s why this process is also called grievance arbitration.  You file a grievance through your Union against your employer.  It goes through the arbitration process.  You do not have (as a unionized employee) to go to court, to go to another tribunal, a judicial body or even to the Labour Board.  The only option you have is grievance arbitration.   I am emphasizing this because a lot of times we get calls from unionized employees who call us and who want us as private lawyers to get involved in their issues.  We advise them that we cannot—they must go through their Union for their representation.  Quite frankly, that’s why they have been paying their union dues so that they could get representation through Union lawyers. 

But there are exceptions.  The only exception you have is, if you have a human rights case.  If you believe that you have been discriminated against and you want to bring a complaint with the Human Rights Tribunal, you have the option to retain your own lawyer or paralegal and file a complaint with the Human Rights Tribunal or you can do the grievance arbitration.  You can’t do both.  Keep that in mind—you have the choice of either doing grievance arbitration or going to the Human Rights Tribunal if you have a discrimination case.  You cannot do both.  If you have filed a grievance and you want to go to the tribunal you have to first withdraw the grievance.  There have to be certain consequences to that withdrawal—how far it is in the grievance process.  Similarly, if you have filed the human rights complaint and it’s being processed, you may not have the option to then file the grievance.  It’s one of the two.  This brings me to the next point that there is no option of having duplicitous proceedings (what that means, is you can’t take two shots—two kicks at a can).  You can’t go to the tribunal and maybe unsuccessful with your case and then you decide that you want to go to the grievance process.  You don’t have that opportunity.

There is another exception, which is called DFR Applications.  DFR stands for Duty of Fair Representation.  This is a basic duty that a union has towards its union members, i.e., to fairly represent them.  If you are a unionized employee and you believe that your union is not fairly representing you then you can bring a DFR application in front of the Labour Board.  That’s a separate topic but that’s another exception that you can have.  The key to remember is that if you’re a unionized employee, the arbitral process is the one that’s open to you—the only exception is really a human rights complaint but you cannot go to court.

Let’s go to the topic number 2 which is choosing between the Court and the Ministry of Labour.  This is an issue that is very common.  We see this all the time.  What happens is, an employee gets terminated.  They go online and Google the topics.  From their research they find out that they have access to the Ministry of Labour—where they can file their complaint and they believe that they will save time and money by going to Ministry of Labour and have them deal with this matter.   Actually, in 99% of the cases it is not worthwhile to go to Ministry of Labour for wrongful dismissal issues.  You may be better off going to court because the remedies that are in court are a lot more than what the Ministry of Labour can give you, especially with respect to termination. 

Why is that ?  Because the jurisdiction or the power of the Ministry of Labour is literally what is prescribed under the Employment Standards Act.   This is the legislation.  The four corners of this legislation decide what a Ministry of Labour Employment Standards Officer can and cannot do.  The Ministry of Labour does not have common law remedies i.e., it does not have the power or common law remedies.  A lot of technical information here.  But what does this all mean?  Let’s look at an example – say you’re an employee who made $60,000 per annum.  You worked for your company for about, let’s say, 20 years and you got terminated.  If you go to the Ministry of Labour and file an Employment Standards Act complaint then the termination pay you will be entitled to—if you’re successful—is 8 weeks of pay, which let’s say is approximately $10,000.  If you have a case and in court for common law rights which may be the situation in your case then you could be entitled to as high as two years of pay which is about $120,000.  You can see that by choosing to go to Ministry of Labour and not going to court you may end up losing $110,000.  This is just an example to give you a sense of how significant the difference is in terms of what you choose—which court or which body you choose.  This is a significant amount of money.  And that’s what you may end up losing if you incorrectly choose the Ministry of Labour route as opposed to going to court.  We have experienced this issue a lot in our practice.  We know that a lot of people make this mistake.  They end up making a complaint with Ministry of Labour and then as you know, you have literally two weeks to withdraw that complaint—they realize after 1 or 1.5 months, that the process is too complicated and they need a lawyers assistance.  They contact us or any employment lawyer.  It is at that time they realise that they have lost the window of opportunity to go and file a case in court and are obviously losing significant remedies.  It is very important at the outset to figure out whether Ministry of Labour is the right place for you to go to or you should be going to court.  That’s a consideration to have at the time of termination.

Another example is for employees whose employers are federally regulated.  If you work for a federally regulated employer, then you are governed by the Canada Labour Code not Employment Standards Act.  Under the Canada Labour Code there is a specific term that’s called “unjust dismissal” and unjust dismissal is not equal to wrongful dismissal.  These are two different concepts.  Unjust dismissal has a specific meaning.  If you are a federally regulated employee you have to be careful whether (you can certainly file a wrongful dismissal complaint or a court action) you qualify for unjust dismissal complaint under the Canada Labour Code which will be filed with the federal employment standards branch.  One of the things that you have to consider is: you have to be a non managerial employee, i.e., you cannot be a manager and seek to file a complaint for unjust dismissal.  The advantage of unjust dismissal complaint is that you have a right to reinstatement.  If the decision is in your favor, you can get your job back—which is not something you could get ordinarily in court.  The court does not award jobs back.  It just gives you damages.  You can also get loss of the income award which could be much more significant than what you can get in court.  This is one situation where you may get better results than in court by filing a complaint under Canada Labour Code.  This is something for federally regulated employees to consider before they decide which body /which court they want to go to. Under Canada Labour Code (if you google it and look it up) currently you have 60 days from the time you are dismissed or you are terminated to actually file a complaint under Canada Labour Code.  If you have missed that 60 days opportunity then you won’t be able to do that—again something to consider seriously.

If you have a case for discrimination under the Human Rights Code or the Human Rights Act, depending upon whether your employer is federal or provincial you will go to either the Tribunal in Ontario or to the Canadian Human Rights Commission.  If your employer is federally regulated then you go to the Canada Human Rights Commission.  If it’s provincially regulated, then you go to the Human Rights Tribunal of Ontario.  The two have different legislation.  They have different processes and different remedies.  You have to be careful which body you go to with respect to your discrimination case. 

Another thing to consider is Small Claims Court.  The Small Claims Court in Ontario has the jurisdiction to award damages of up to $25,000.  If you believe your case is less than or equal to $25,000, then you can go to the Small Claims Court.  If it is more than $25,000 then you want to go to Superior Court of Justice. 

Another factor to consider is the kind of claims you have.  When your lawyer is considering—it’s not only the wrongful dismissal but he or she will consider if there are damages for any bad faith conduct or discrimination issues which can get tagged along and then the total damages may be much higher than $25,000.  You may be better off going to Superior Court.   Something to consider in choosing whether you want to go to small claims court or Superior Court for your wrongful dismissal.

Recap:

We’ve covered a lot of topics in this lecture and the reason why I wanted to touch upon all of these was that I at least wanted you to take away the 30,000 feet view that if you are dismissed and you are considering a court action or filing a complaint of some kind, you must at the outset decide where and what is the appropriate forum that you want to go to.  If you’re not clear yourself about it, this may be a time to go seek legal advice or a consultation with an employment lawyer. In my practice I have seen lawyers who do not practice employment law—let’s say the commercial litigator or someone who infrequently practices employment law—they don’t have a clear understanding of choosing the right forum.  This can have significant consequences for their clients.  It’s nothing that you cannot understand—it’s unfortunately that that’s how the processes are set up and they’re a bit complicated.  You have got to untangle those before you choose the right forum.  Keep that in mind—if you are wrongfully dismissed then you want to decide on the appropriate forum before you proceed and not after you have commenced the process because then that may be a bit too late.  Hopefully, this was useful.

If you have any comments, please do send us an email if you require consultation on any of these issues by means book a consultation through Clarity or feel free to contact us through our law firm and we will be happy to assist you.  Thank you and we look forward to seeing you in our next video.

Show Notes:

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Lecture Slides:

Machine Transcription:

Hello everyone welcome to lecture three issuing a claim in Small Claims Court in four steps and this lecture is Step 1, Part 1. 

Let’s look at all four steps. Step 1: you will complete the Plaintiff’s Claim form which is form 7A. Step 2: you will gather all the evidence that you need to support your claim.  You will attach it to Form 7A. Step 3: you will visit the Small Claims Court office where you are required to issue your Claim and Step 4: you will serve the Issued Claim on the Defendant.

Once you have completed all the four steps then it is the Defendant’s job to file and serve its defense within the time period that is prescribed by the Court.

Step 1: you have to fill out Form 7A.  You can download this form.  I have provided the link here (http://ontariocourtforms.on.ca/en/rules-of-the-small-claims-court-forms/) and it’s also in the teachers notes. You can go to this website and it has all of the forms that relate to Small Claims Court. Let me see if I can show you these forms. If you go to this website you will see a page like this: Rules of the Small Claims Court forms and if you download and scroll down you will see all of these forms And here is our Form 7A which is Plaintiff’s Claim.  This is the the most recent one.  It is available in PDF where you can view it but if you want to fill out the information electronically then you download the word form. Let’s click on word.  It opens up the form and voila! this is what the form looks like. Let me see if I can show you the whole page. If you look at this form—this is page one. You really can’t read anything but I will take you to each section of this form. Page 1, Page 2 and Page 3.  There are only three pages in this form You can download it and can you see these gray areas? That’s where you can input information. You can electronically fill this form out and save it or you can print it and handwrite the information.

We are on page 1 of Form 7A. Let us start on the top right corner of the Plaintiffs claim. It says Claim number you do not need to put in anything here it is not very clear from the form but this space is for the Court to put the information about your Court file number. Your unique Court file number comes in here and the Court’s clerk will fill that information. What you do need to fill out is this section where it says Small Claims Court.  Over here you write down whichever Small Claims Court office you are issuing your Claims. If you are in Toronto then you write Toronto Small Claims Court here.  If you are in Burlington or Richmond Hill or any other Small Claims Court you write that down here. In the second part you write down the Court’s address and phone number.

Further down you see Plaintiff’s Information. If you are the Plaintiff, then this is your information.  If you are the only Plaintiff, then obviously it’s one person’s information. If you are more than one Plaintiff, then you check this box here where it says Additional Plaintiffs listed on attached Form 1A.  This Form 1A you can again download from the same website I showed you.  All it does is it gives you the space to write down the names for additional Plaintiffs or Defendants. If any of the Plaintiffs is under 18 you check this box over here. Last name of the Plaintiff, first name of the Plaintiff—if it is an individual. If it is a company, you write the company’s full name here.  If there are aliases or other names you write that down here.

To give you an example, let’s say your name is James Smith but you are also known as Jim Smith, you may want to write that down here in the “Also Known As” space. Put in the information for your address: city, town, province, phone number and if you have a fax number put that information also. Put in your postal code. This information is for your representative.  If you have a lawyer or paralegal representing you, then his or her name and the name of the firm comes here. LSUC number is the Law Society of Upper Canada number.  It is issued to every licensed lawyer or paralegal.  That information goes here. As you are taking this course you will not need to hire a lawyer or a paralegal to represent you.  This section you will then be leaving blank. No representative as you are managing this case all by yourself.

Important thing to keep in mind: who is the Plaintiff? In most cases it is very obvious who the Plaintiff is.  If you are the individual and you

have been wronged by the Defendant i.e., the person you are claiming against, then you are the Plaintiff and you put your name down—the correct legal name.

In some cases, you know it could be a company.  You may have hired someone on behalf of your company.  If that is the case, then your company is the Plaintiff not you. One of the ways to figure that out: is there is a written contract for those services or for whatever reason you’re suing.  If there is something in writing, you want to see who are the parties to that written agreement.  If you have signed the agreement in your personal capacity, then you are the individual who can bring a claim.  If you have signed it as a representative of a company then that company is really the Plaintiff.  In some instances, there could be multiple Plaintiffs.

For example., you hired a plumbing company to do some repair work in your house.  The house is owned jointly by you and your spouse.  You have both hired the plumbing company. Then both of you could be Plaintiffs.  This is something to pause and give a moment of thought: who is the correct Plaintiff?  You want to make sure that you put the right Plaintiff’s name in here because if you put in the incorrect Plaintiff the person would not have any claim against the Defendant because that person is not the right party.  You do not want to waste your time and energy in a claim for which that person is not a party.  Therefore, getting the Plaintiff’s name correct is important.

Underneath the Plaintiff’s name we have the section for Defendant’s name. Same kind of boxes except that this is for the Defendant’s information.  You put in the Defendant’s name here.  If there is more than one Defendant, you get the additional Defendants form 1A and put that information there.  By the way, the Form 1A goes behind the first page so first page is page 1 and then behind that you put in form 1A, which will now be the page 2 of your claim.

If any of the Defendants is under 18 you put that down here. Last name if it is an individual is here. If it is a company, you put the full name here.  First name, “Also known as” aliases you put that information here. Address: city, province, phone and fax (if available) number and postal code.

This is information for the Defendant’s representative a lawyer or a paralegal.  In most cases if you’re issuing a claim you would not know whether the Defendant is being represented and, if there is a representative, what their name and address is.  In most cases this information will be left blank.  Nothing here in representative LSUC number, address—none of that.  You will leave the section blank.  What is the important thing to keep in mind for the Defendant is that you need to know the exact name of the Defendant.  This is very, very important.  If you get a judgment against the Defendant and you have the wrong name, then you have to go and enforce that judgment against that wrong named Defendant which may not exist right.  Therefore, it is essential that you get the name right.

Some of the things to keep in mind is that if it’s a company: then is it a corporation, or is it a sole proprietorship?  You want to get the exact name.  If it’s a company, I’ve given three examples: (1) ABC Ontario Inc. and you see how Inc. is written here.  If that is the name you want to make sure you write it down in that way. (2) If it is ABC Ontario Incorporated (in the second example) – this one, then you want to make sure that you write that down correctly. Let’s see if it’s ABC Ontario Limited then you want to make sure that you write that down correctly.  Correct name of the Defendant is very important.

The Defendant may have multiple names so another example could be that the legal name is indeed ABC Ontario Inc. but the company may be carrying out business as ABC Plumbing, then you want to name ABC plumbing as a Defendant.  You want to make sure that you cover all possible names of that Defendant so that you are able to enforce the judgment if you need to at a later stage.

If there are multiple Defendants, by all means, write all of the Defendants names in the Defendants section.  You want to make sure that you cover as many Defendants who are obligated to make you the payment or the claim.  Get that down—it is very important to get the Defendants name right and you want to make sure that you do that.

Recap:

• you choose the right Court office: you know how to do that we taught you—you go to that Court office and you put that information there
• then you want to make sure that you have the correct /the right name of the Plaintiff or Plaintiffs and
• right name off the Defendant or Defendants

In the next lecture we will go to page 2 of Form 7A which talks about the reasons why you are issuing this claim, what happened, what is your story and we will tell you the best way how to write that down so that it is reasonable and it makes sense to a judge or a reader.  We will talk about that in the next lecture and if you have any questions or comments about this lecture by all means please send us your feedback by email or call us.  

Please bear in mind that we tend to provide additional information and teachers notes which is not required for the purposes of this lecture but that is additional information for your knowledge. Please check out the teachers notes for additional information and I look forward to seeing you in the next lecture thank you.