Archive for June, 2020

Discovery Process in a Civil Proceeding Ontario

Friday, June 26th, 2020

This lecture provides a basic understanding of the discovery process in a civil action in Ontario.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.


Show Notes:


Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

In today’s lecture we will talk about the discovery process in a civil proceeding in Ontario.  We will provide you with a very basic overview of what this discovery process is; what kind of principles apply to the discovery process and some of the Rules that apply to discovery process.  The lecture will be quite broad and will provide you with an overview so you can understand the discovery process itself.  As always we will begin with our usual disclaimer that this course and this lecture is not legal advice. If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or contact the Law Society of Ontario for a referral.

A civil proceeding / a civil action can generally be divided into 3 parts the 1st part is pleadings; the 2nd is the discovery and the 3rd is the trial.  We have covered pleadings in another lecture so I would ask you if you’re not familiar with pleadings to go and look at my other lectures.  Briefly speaking, pleadings are documents such as: statement of claim, statement of defence, reply, counterclaim, third party claim, etc.  These are the basic documents that you file and serve.  They contain the facts of your case and the legal basis for what you are claiming.  If you are claiming something against some party, that will be contained in the Statement of Claim.  You will have all the facts and what is the legal basis for such a claim.  In response the defending party will file their statement of defence.  These are the documents—the fundamental documents that contain what this case is about (what this action is about).  All of these documents are called pleadings.

Now discovery process, which as I said is the 2nd part of the civil action: what is the discovery process?  Let’s go through its definition in a bit more detail.  It’s a “pretrial procedure in a lawsuit where each party can obtain evidence from the other parties”.  The keyword here is each party and evidence to each party means that if you are plaintiff or a defendant, then you are entitled to obtain evidence from other parties or a party.  If there’s only one other party, then you can get evidence from that party but if there are more than one parties in this action then you are entitled to obtain evidence from each of those parties.  What will constitute evidence? What kind of evidence is provided or is obtained? I want you to keep this in mind.  The evidence should be evidence that is relevant to the issues in litigation. That’s the important part that it has to be relevant to the issues in litigation.  Let me give you an example of what could be relevant to the issues in litigation.  Let’s say you hired a contractor to renovate your kitchen and the contractor did not do a good job.  You are asking the court to give you damages for the harm that he, the contractor, may have caused you or for not doing the job properly.  You have some damages because the whole project did not go as it was contracted or as it was planned.  The relevant evidence would be whether there was a contract between the parties and if there’s a contract then a copy of that contract will be relevant evidence. What was agreed upon orally that could be relevant evidence.  If there were photographs of the kitchen, before, after or during the damage—all of those pieces of evidence would be relevant.  What would not be relevant is: how many kids does the contractor have; or how much money do you make through your living; because those are not relevant issues.  The court does not need to know the evidence of those issues to determine whether the contractor did the job properly or not.  The relevant issues or the relevant evidence is the one that is relevant to the very issues before the court / before the judge to decide the matter.

Now, another part that you want to keep in mind and it’s an important one is that the evidence could be good or bad, both kinds of evidence need to be produced.  For example, in this case while the contractor was doing this renovation, he ended up damaging your television in the living room.  Let’s say that during this renovation process he was recording each step of what he was doing.  There is a video that shows that the contractor actually damaged your television set.  Contractor has those videos.  You don’t have copies of those videos and that part of video or that part of evidence which actually shows that the contractor caused that damage to your television—is a pretty damning piece of evidence.   Is the contractor allowed to hide that video to suppress that evidence? No, even though the evidence could be bad for the contractor’s case the obligation under the Rules is still to provide that piece of evidence. Similarly, if you have any piece of evidence that is relevant but it is not favorable to your case, you are still required to provide that piece of evidence.  If it’s good or bad—you cannot be selective about what kind of evidence to produce as long as it is relevant whether it supports your case or it goes against your case you are required to produce that evidence. A natural question would arise, that why should you provide evidence that is not favorable to your case?  The basic idea behind it may be that we are in a fight – why should I help the other side’s case if I have evidence that goes against my case or that supports the other side’s case.  It’s a natural question. 

The answer to that question lies in the underlying legal principle which can be phrased in different ways.  One of the ways is that there is no trial by ambush in a civil legal proceeding. What this means is that there is a fundamental legal principle that our courts (common law courts) believe in a civil system: that is that each party is entitled to know full case and full evidence against it and each party is required to disclose all of the evidence that it has for its case,  so that when the matter goes to trial there really aren’t any surprises on both sides and all parties are ready to deal with the evidence that has been presented and there are no hidden pieces.  You can’t walk into a court at the day of trial and provide this damning piece of evidence and say “this is the evidence, that will win my case” and I never produced it before—because there will be consequences to the late production of that evidence. This is different from a criminal proceeding.  A lot of times our concept of surprise evidence comes from all these criminal shows that we watch where you notice that someone walks into the courtroom while the trial is going on and approaches the lawyer and provides a piece of paper or a photograph that actually destroys the case of the other side and that evidence is presented.  A lot of times our concept comes from that.  Most of those legal shows or dramas are dealing with criminal matters. I want to clarify and to be clear that criminal proceeding is fundamentally different than a civil proceeding.  In a criminal proceeding the Crown/the prosecutor has the burden to show without reasonable doubt whether the person who is accused has committed the offense that he or she is being charged for.  In a criminal proceeding the crown or the prosecutor has an obligation to disclose all of the evidence that they have against the accused to the accused or to his or her lawyer.  But the accused does not have any corresponding obligation to provide any evidence to the Crown—because the burden of proof rests entirely with the Crown.  In a criminal proceeding the accused does not even need to testify if he/she or his/her lawyer believes that the Crown has no case and they will not be able to establish beyond reasonable doubt that the accused committed what they are alleging that he or she committed.  In some criminal proceeding you will find that the accused never even attended and testified at all.  One most recent example I think of, is the Gian Ghomeshi case, where he was charged with sexual assault and certain sexual misconduct allegations criminally.  At trial, the Ghomeshi lawyer brought forward pieces of evidence which were e-mail correspondence that some of the witnesses who were the alleged victims of Mr. Ghomeshi’s assault—they had e-mail correspondence which appeared to be quite friendly towards Ghomeshi even afterward the alleged incidents of sexual assault had occurred. These e-mails were not—even though he had those e-mails and he had provided those e-mails to his lawyer—the lawyer did not have any obligation in the criminal proceeding to provide those e-mails to the Crown.  When the trial began Ghomeshi’s lawyer brought forward those e-mails and put those e-mails to the witnesses—basically used those e-mails or correspondence to doubt the credibility of those witnesses.  It is very different in a criminal proceeding (what I want you to understand is that it is different in a criminal proceeding).  In a civil proceeding there are no surprises.  You are entitled to know all of the evidence that is against you.  Similarly, the other parties are entitled to know the evidence that you have against them.

How is the discovery process conducted? 1st there is documentary discovery and 2nd then there are oral examinations that are conducted.  In some cases you can have written examinations. You can also inspect property. If one of the relevant issues relates to property then you are entitled to inspect certain property.  In some cases medical examination of a party may also be part of the discovery process.  Documentary discovery is generally one of the most important aspects of discovery except for the examinations.  You are required to provide all documents and documents includes data and information in a in an electronic format.  What this means is if you have any paper trail / paper copies you are required to produce those; if you have any e-mails; letters; text messages; photographs; videos; audio recordings; etc., all of these are required to be produced.  The word “document” is actually defined in the Rules of Civil Procedure.  You can see it here: “a document includes data and information and in electronic form and in the electronic includes created recorded transmitted or stored in digital form or in other intangible form by electronic magnetic or optical means or by any other means that has capabilities of creation recording transmission or storage, similar to those means, and “electronically” has a corresponding meaning”.  It’s a very broad definition of document and it includes all kinds of evidence and you want to make sure that all of those kinds of evidence are produced.  With respect to electronic evidence, I want you to keep in mind the obligation to produce is the actual electronic copy of the electronic evidence not just a printed copy.  For example, if you have e-mails, the obligation is to provide the e-mail in its electronic format and not just printed and provided to the other side.  Generally speaking, if there are no issues with respect to how the data is stored and how it is created, then most counsel or most parties are Ok to receive the content of the e-mail in a printed form. 

Oral examination is an examination of a party under oath. It is recorded and transcribed and it is used at trial.  The oral examination does not happen in court. It happens outside of court. There are private companies which are called court reporters. They have these facilities with which you book. They have rooms and a court reporter. You swear an oath and your examination is recorded while the other party asks you questions or their lawyer asks your questions.  Similarly, you can ask them questions.  It is all scheduled before hand and then the examination is conducted.  All of this examination (because it is under oath)—the evidence that you provide at all examinations for discovery is used and can be used at trial.  This evidence is as good as evidence given at trial. There’s a significant importance to the oral examinations for discovery.  

Some of the procedural aspects of discovery that I want you to understand, obviously the most important part is Rules of Civil Procedure which provide specific Rules with respect to the conduct of discovery.  These Rules are 29.1.01 to 33.08. I will encourage you if you’re going towards the discovery process, to review these Rules very carefully.  Each Rule has significant importance and I will try to cover specific Rules in ongoing lectures.  I’m not going through these Rules in this lecture because it will be a very long lecture.  It will be cumbersome to cover all aspects of it.  We will cover specific Rules later on in further lectures. Just so that you understand broadly the Rules—the way the Rules define the discovery process is that once the pleadings are closed—meaning that every party has filed their reply and defense and statement of claim and what not—then within 60 days parties have to agree to a discovery plan.  Discovery plan is generally you agree to certain dates—when will we exchange documents, when will we conduct examinations for discovery, what dates if there are potential motions for undertakings and refusals, and whatnot that arise from an examination from discovery, what are the dates for that.  A discovery plan is a plan agreed upon between parties.  It could be very brief, it could be very elaborate. It outlines some of the dates when certain steps for discovery need to take place. Once the pleadings are closed you also have an obligation to prepare affidavit of documents and serve it on the other side. Affidavit of Documents are essentially your affidavit that states that I have gone through all my records and everything and I believe these are all the documents that I believe are relevant to the issues in this action and I’m giving these to you. You receive the Affidavit of Documents from the other side.  That is the documentary disclosure that is conducted through affidavit of documents. Then once you have the affidavit of documents, you have oral examination scheduled where you examine the other side and they examine you.

Value of Discovery: Discovery is one of the most important steps before trial.  I think it is important to understand the value of discovery and some of the things that discovery can allow you to do. 1. It enables the parties to assess the strengths and weaknesses of their case and this point is important. I can tell you from my experience, when we have conducted examinations for discovery at the end of examination, the lawyers who are reviewing the case objectively for their client and reviewing the case objectively for the other side—they have a very good sense of the merits of the case in terms of the ability to succeed based on the evidence that is before them. After the examination for discovery is completed, generally lawyers have a very good sense and they can advise their clients, not in all cases, but generally speaking, what are the strengths and weaknesses of that case. And once you are clear about the strengths and weaknesses of your case then it helps you to narrow down the issues for trial.  Once again let’s say you have thought about 5 different issues when you filed your pleadings and you thought all of those issues were important. Once you have conducted examination for discovery you may realize that not all of the issues are important only 2 issues are important and you can actually narrow down the issues. You can focus on those issues at trial. Examinations for discovery and discovery process also helps parties reach a settlement because now all the evidence is on the table, you have seen all the documentary evidence, you have seen all the stuff that the other side has in support of their case against your case/ in favor of your case—they have seen yours. You have examined the other side, they have examined you.  There’s not much left other than the actual trial where you allow the judge to determine who’s right and who’s wrong but prior to that if you would like to reach a settlement you have a very good sense of the strengths of your case.  It then allows parties to be reasonable and agree to a settlement.  It also makes the trial process more efficient and fair because now you have narrowed down the evidence; you’ve narrowed down the issues.  You have a clear sense of what the evidence is going to be at trial. It makes the process a lot faster, more efficient and fair.

In conclusion you want to keep in mind that discovery process is actually one of the most important process before trial. You want to carefully review all of the rules that apply in discovery process and you thoroughly prepare for the examination, why? because you want to keep in mind that over 90 percent of cases in Ontario civil cases actually do not go to trial. They settle prior to trial. If you have conducted an effective examination for discovery and you have shown the other side through your examinations and documents that you have a stronger case then your ability to get a better settlement is much higher.

Thank you for watching. I will try to cover different aspects of the discovery process separately in the following lectures. If you have any questions or comments please feel free to contact us and we look forward to seeing you in the next lecture.

Service of Court Documents in Ontario

Friday, June 26th, 2020

It is essential for the litigants to serve court documents properly on other parties in accordance with the Rules of Civil Procedure. This lecture provides guidance regarding the service of originating process, for example, a statement of claim, notice of action etc.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.


Show Notes:


Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel

In today’s lecture we will talk about service of court documents in Ontario.  This lecture deals specifically with matters / proceedings in the Superior Court of Justice in Ontario.  It does not deal with matters that relate to small claims court.  However, the Rules relating to service are quite similar in small claims court and in superior court.  You will benefit from this lecture even if your matter is in small claims court. This topic has come a few times. I had interactions with some of you who had specific questions about service of documents in their own proceedings.  Then I ended up dealing with this matter, in one of my own court cases, where on behalf of my client I had to bring a motion to the court and ask for a relief on substituted service—not something that we will cover today.  It has become an important topic so I thought it would be prudent to cover it now.  We begin with our usual disclaimer that this course is not legal advice.  If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or contact the Law Society of Ontario to get a referral.

There are different types of court documents. Some of these documents are a Statement of Claim; Notice of Action; Notice of Application; Statement of Defence; Counterclaim; Third Party Claim; Crossclaim; Reply; Affidavit of Documents, etc. All these documents are referred to in the Ontario Rules of Civil Procedure.  How do you serve those documents on different parties? That is all specified in the Rules of Civil Procedure.  We’re going to focus today on the service of originating process which is an important topic.  Why are we going to talk about the originating process?  We will cover that.  Let me explain what an originating process is.  This is covered under Rule 1.03(1). There are specific documents that are considered documents of originating process. Statement of Claim, obviously, Notice of Action, Notice of Application, An Application for a Certificate of Appointment of an Estate Trustee, a Counterclaim against a person who is not already a party to the main action, and a Third Party or subsequent party claim. If you go to Google; go to the Rules of Civil Procedure; open it right here under Rule 1.03(1) Definitions. The originating process is defined here and these are specific documents that are listed here which constitute originating process. Why do you need to effect proper service for the originating process? Why is this so important? I think you can understand from the nature of these documents that these are the documents (originating process documents) are the ones that actually start a court proceeding.  If it’s a claim, then it’s starting a court action; if it’s an application then it’s starting an application.  Any originating process is the very 1st document that allows you or a party to commence a proceeding in the Superior Court. Now there is a separate process of going to court, filing your Statement of Claim, getting the court file number and having it issued. Once that document is issued the Rules require you to serve that originating process—statement of claim; that notice of action—on to the other parties because then the parties involved would know that they are involved in that proceeding.   They, then, have an opportunity to defend themselves or defend their position in that proceeding.  If the originating process is not served on any of the parties, then the situation that may arise is that the defendant or respondent may not even know about a proceeding.  Put yourself in the shoes of a defendant (if someone commences a court action against you). For example, the allegations may be that your dog may have bit that person.  That person brought a court action against you for certain damages. That person goes into the court, files a statement of claim and gets that issued.  But if you don’t know that there is a court action against you, you have no opportunity to defend yourself. And if you’re not participating in that proceeding, then what can happen is, the applicant or the claimant has the opportunity to seek default remedies because there are specific timelines.  If you have not responded or you have not filed your statement of defence or other court documents that are necessary to participate in that court proceeding then, after the timeline is over, the applicant or the claimant can go to the court and say that the defendant or the parties / the respondents / the defendants have not participated / have not filed their statement of defence and I want a default judgment against those individuals or those parties.  Once the claimant or the applicant can get a default judgment then they can proceed to have the enforcement of that default judgment.  It’s a pretty significant remedy for an applicant to proceed—absent a defendant or respondent participating in the court process.  Because the applicant can go and get a default judgment, the courts are very concerned about issuing / granting of default judgment when there is no defendant or respondent present. Ideally what courts like is for all the parties to show up, all the parties to present their positions to the court, present the evidence and then the court can decide who is right and who is wrong.  If there’s only one party before a judge / before the court and the other party is not present, then the natural question that arises in the court’s mind is whether the party that is not present knows that there is a court action against them.  When you proceed with that motion for default judgment / default remedies, then the court is going to examine how you conducted the service of your originating process.  

The court is going to look at the Rules and the court is going to look at what actions you took to serve those documents.  If you did not take the steps that are required by the Rules of Civil Procedure, the court will send you back and will not grant you the remedy that you’re asking for.  That is why it is most important that the originating process be served properly.  You are aware of all the Rules that are imposed with respect to the service of the originating process.  Rule 16 of the Rules of Civil Procedure is the one that specifically deals with service of all kinds of documents.  Rule 16.01 deals with the service of originating process.  Rule 16 basically says: “an originating process can be served personally or by alternative to personal service”.   Let us look briefly at what is meant by a personal service? And, what is meant by an alternative to personal service?  Personal service is specified in Rule 16.02. When you read those rules and I’ll take you there.  We will quickly go through the Rules on the website.  The Rules are very specific. They have specific requirements. If you are to service the document on an individual I mean a municipality, a corporation, a minor, a mentally incapable person, a crown, a person who is absent—there are different kinds of parties based upon their circumstances and there are different obligations on you to ensure that the service is properly effected on these parties. For example, if you’re serving the originating process on an individual, the easiest way of doing a personal service is by leaving a copy of the document with the individual.  We see this often being played in the movies when someone is sitting at a restaurant and a person comes in and approaches them, addresses them, confirms their identity “are you so and so” “Mr. So and So” and the seated person says yes, then the other person hands over a document saying you’ve been served.  You don’t have to in Canadian jurisdiction say the wording “you have been served”, you just need to provide the document.  One of the nuances of this, is, that it is not necessary for that person to take the document from your hand – that’s not your obligation.  If the person refuses to take the document, you can just leave it in front of that person – on the table, on the ground and just walk away.  You’re not required to ensure that the person accepts that document from your hand as long as you confirm the identity and you have either handed over the document or left it in front of that person and walked away.  That will be sufficient in terms of a personal service on an individual.

With respect to a corporation, you can serve the originating process on an officer, director or agent of the corporation or with any person at any place of business with the corporation who appears to be in control or management of that business.  Obviously, if you know the identity of the officers or directors or agents of the corporation you can serve it on them, otherwise the common practice is that you go to one of the offices of the corporation and if they have a reception you serve it at the reception.  That will generally be considered sufficient personal service.

Let’s go down to Rule 16.01 to have a quick look at it. As I mentioned Rule 16.01 basically says that originating process shall be served personally or by an alternative to personal service.  If you scroll down Rule 16.02 (is the one that I just briefly went over) it talks about how to serve an Individual, Municipality, Corporation, Board or Commission, Person outside Ontario carrying on business in Ontario, Crown in Right of Canada, Crown in Right of Ontario, Attorney General, Absentee, Minor, Mentally incapable person, Partnership or Sole Proprietorship. All of these categories are specified here.  If you are dealing—the common ones are individuals or corporations.  If you’re dealing with an entity that is not one of those 2 categories then you need to review the specific rules and then understand and follow them.  Alternative to personal service is under Rule 16.03.  Let’s quickly look at the Rule. Alternative to personal service obviously means that if you could not effect personal service then you have an option to do it and by alternative means.  One of the alternative means is that you can serve the document (the originating process) at the place of residence of that person. If you scroll down [Rule 16.03 (5)] Service at Place of Residence: “where an attempt is made to effect personal service at a person’s place of residence and for any reason personal service cannot be effected;” (i.e., the person is not there that you want to effect service to and you are unable to serve that person personally) “the document may be served by (a) leaving a copy, in a sealed envelope addressed to the person, at the place of residence with anyone who appears to be an adult member of the same household.” It cannot be a person who is a minor.  You cannot serve it on them. You can serve it on the person spouse or parents or any adult member who appears to be belonging to the same household.  That’s step number one (in a sealed envelope).  Then, “(b) on the same day or the following day by mailing another copy of the document to the person at the place of residence, and service in this manner is effective on the 5th day after the document is mailed.”  There are basically 2 steps if that person is not present at the residence. You leave it with an adult member of that household and then the next day you have to send another copy by mail to the same place of residence if you don’t follow this step number 2, then the service will not be effective. That’s an example of effecting service at the place of residence. Another example could be, acceptance by a lawyer.  If, for example, you are serving documents on one of my clients and you cannot locate my client or you wish to serve it on me because you know that I’m the lawyer, then you contact me and you say that I am willing to serve the document on you as their lawyer.  Important for you to know is that I need to confirm to you that I have the authority to accept the service on behalf of that client. That person / that party may be my client on other matters but I may not have the authority to deal on behalf of that client on this specific matter that you are dealing with.  Acceptance by the lawyer is important unless the lawyer is already a ‘lawyer on record’ in the court record.  Then you don’t need to have a specific approval from the lawyer. Another example of alternative service is last known address. Once you know the last known address of the person you can effect service there.  Let’s look at how you do that. Rule 16.03 (4) Go to Service by Mail to Last Known Address: Service of a document may be made by sending a copy of the document together with an acknowledgement of receipt card (Form 16A) by mailing to the last known address of the person to be served, but service by mail under this subrule is only effective as of the date the sender (which is you) receives the card.” What this means, is, when you’re mailing it to the last known address you send the card, the person accept and signs the card, sends it back to you—when you receive it only then the service is effective.  That’s now generally.  With respect to service on a corporation, you can find out the last known address of the corporation from the Ministry of Government and Consumer Services.  You go to the Ministry (there is a branch in downtown) and then you get what’s called the Corporation Profile Report.  That will indicate the last address that is recorded in the government records of that corporation.  If you mail that document (the originating process) on that recorded address, then the service will be effective.

It can get complicated but as I mentioned the service originating process is crucial. It’s very important.

You need to make sure you do it properly. There are organizations / companies called process servers. These are companies that are specialized in serving court documents. That’s what they do all day long. You can always google them, find one in your jurisdiction, contact them and ask them to effect service on your behalf. That maybe at a little bit of cost to you—it is not significant.  I think that maybe an easier way to ensure that the documents are properly served and the process servers know that once they have effected the service they will provide you with an Affidavit of Service.  They will do the whole thing and you will not have any issues if you have to appear before the court to prove the service of documents.

Now a topic that I have not covered but to which I alluded to in the beginning is something called substituted service or dispensing with the service.  What if you try all of the above things and you were still not able to serve? You can actually under Rule 16.04 bring a motion before the judge and get an order for substituted service—meaning other ways of effecting service that you think will bring the originating process to the knowledge and attention of the parties or completely dispensing with the service.  There may be circumstances where you believe that service simply cannot be effected and you want the court to dispense with it.  In that case you’ll have to bring a motion and you’ll have to explain to the judge why you couldn’t do personal service or alternative to personal service and why substituted service or dispensing with the service is appropriate. There may be circumstances where you may be able to show to the court that the effective way of serving is by e-mail, by Facebook, Twitter or an Instagram account. In a motion that I recently brought, I was able to explain to the judge why email service will bring the originating process to the attention off that party.  The court granted me that permission.  If you have to explain—it has to be a reasonable position, it needs to make sense and then the court will grant you the remedy. Service on a lawyer who is not a lawyer on record: as I mentioned, if I am a lawyer for that party but not on the specific matter, then you can ask me and I can refuse to accept service then you can bring a motion and explain to the judge that Mr. Mushtaq is counsel for that party in an existing proceeding, so he’s obviously in contact with that party.  I want the court to order that if we serve the originating process on Mr. Mushtaq, this will be an appropriate service and should be accepted. That’s also a possibility that you can get court’s permission to serve on a lawyer that you know is in contact with that party and will be able to communicate your originating process to the party.

In conclusion, you need to carefully review Rule 16. I’ve shown you some parts of it but depending upon your circumstances, you want to make sure that you review it, you understand it and then you ensure that the service is effected pursuant to the Rules of Civil Procedure.  You then, ensure that you have the proper Affidavit of Service prepared and it’s ready if you need to bring a motion to the court for default judgment.  The court is going to ask you how did you affect service? And do you have an affidavit of service? If it was not you, and someone else affected service. 

Thank-you for listening. Thank-you for watching.  If you have any specific questions on this topic, please do not hesitate to send us an e-mail or contact us and we’ll happy we’ll be happy to address that in another lecture.

Three Things You Must Know Before Starting A Small Claims Court Action In Ontario

Friday, June 26th, 2020

Before you start an action in small claims court in Ontario, review this lecture to understand the jurisdiction of small claims court. This lecture explains the monetary jurisdiction, the territorial jurisdiction and the powers of the court.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.


Show Notes:


Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

If you are thinking of starting a court action in small claims court there are a few things that you must consider before you do so.  We will talk about 3 important things that you must have in your mind before you commence.  We begin with our usual disclaimer that this course is not legal advice.  If you have any specific questions regarding your case you must contact a lawyer or a paralegal or contact the Law Society of Ontario for a referral.

What are the 3 things that you must keep in mind number? [A] One the monetary limit of Small Claims Court;  [B] Number 2, the location of the court; and [C] Number 3, what other powers does the small claims court have, that you should know before you proceed with your court action.

[A] Monetary Limit: a lot of people already know this; the monetary limit of small claims court is $25,000.00—it used to be $10,000.00 a few years ago.  Then the Ministry of Attorney General increased the limit to $25,000.00. What you want to keep in mind is that $25,000.00 is only the value of the claim – it does not include disbursements.  Disbursements are the cost of running that court action. For instance, when you file the claim in the court you have to pay certain fees.  Those fees are called disbursements.  You may have to serve documents on the other party—you may incur cost.  You may have to prepare documents or book of documents for Trial and you may have binding charges, photocopying charges, faxes and whatnot. Those are all the costs that are associated with the running of the court action.  In court these are called disbursements.  The disbursements are on top of $25,000.00.  There are certain limitations in terms of how much disbursements you can get.  For instance, for a service of a document, I believe the limit is $60.00 for that particular service.  There may be some other limits but the important point that you want to keep in mind is that $25,000.00 does not include disbursements.  You claim disbursements in addition to $25,000.00. Also $25,000.00 does not include other costs; e.g., if you have retained a lawyer or paralegal to pursue your case, and you are successful; you may be able to get some costs on top of your claim. I believe it’s Section 29 of the Courts of Justice Act that prescribes that you can only get costs up to 15% of the value of your claim.  If you get a judgment for $20,000.00, your costs will be limited to $3,000.00.  What you also want to understand about costs, is that there are circumstances in which you can get more costs. The Rules of Small Claims Court (I believe it’s Rule 19) and also Section 29 of the Courts of Justice Act indicate that if the other party has acted unreasonably (and unreasonably could be: prolonging the proceeding improperly, not accepting a reasonable offer that you made under the Rules of Small Claims Court or acted in any other improper way) you can bring it to the attention of the court on completion of trial and before the costs are awarded.  The court may actually impose additional costs against that party as a penalty.  You may be able to get more costs if you are successful in showing that the other party did act improperly.  What you want to keep in mind is that $25,000.00 does not include interest.  The court is also empowered to award prejudgment and post judgment interest.  These are 2 different kinds of interest but those interests could be awarded.  You may claim those on top of $25,000.00.  All in all your claim maybe $25,000.00 but the total recovery may be higher than $25,000.00, depending upon all these costs that you may have incurred in the process of pursuing your court action.

[B] Location: Now the location of the court is an important point. Why? Because if you are commencing a court action in the Superior Court of Ontario, then you can pretty much go to any court in Ontario and commence your Superior Court action.  But when it comes to Small Claims Court you actually do not have that choice.  You have to commence a small claims court action in a specific territorial division—relevant municipality—if that could be understood better.  What are the factors that the court will consider in deciding which court office (which small claims court office) has the jurisdiction? There are 3 things that the court will consider.  1. Where did the events occur?  Let me explain that by way of an example:  Let’s say, you have an office in Toronto and you needed some renovations.  You hired a contracting company whose office is in Vaughan. But they came down to Toronto and completed your project or worked on your project. You had some sort of dispute because of that service.  You’re going to Small Claims Court.  Now the events occurred in Toronto.  Because the events occurred in Toronto, you can go to Toronto Small Claims Court and commence a court action.  You don’t have to go to a court office near Vaughan or in Vaughan Small Claims Court where the defendant is.  You can actually commence it in Toronto. 2. The other option is where defendant lives or conducts business.  In the same example you have the option to go to a Small Claims Court in Vaughan. Just so you know there isn’t a small claims court in Vaughan. I believe New Market has the jurisdiction for a small claims matter for Vaughan. Where ever the defendant lives or conducts business, you can go to a small claims court office in that area. In the area that has jurisdiction and you can commence your court action there or 3. in the nearest court office to where the defendant lives or conducts business.  In our example, for Vaughan you can go to Newmarket which would be the nearest court office—where the court has jurisdiction.  If you, for instance in this example, let’s say you personally live in Brampton.  You believe that it will be easier for you to pursue this court action in Brampton and that’s where you want to commence the small claims court matter.  You are not allowed to do that.  The defendant may object to it and may bring a motion raising this issue that you are not in the appropriate court.  You may be compelled to transfer your matter to the court which has jurisdiction or you may have to restart a new claim in that court.  You want to make sure that you commence your court action in the appropriate court office in the beginning so that you don’t have to deal with any further delays because of location issues.

[C] Powers of the Court: Finally, you want to understand some of the powers of the court and in my experience, I have noticed that a lot of lawyers and paralegals are at times unclear that small claims court has equitable powers.  It does have equitable powers.  A lot of people who have not dealt with small claims court frequently believe that the small claims court does not have equitable powers.  If you’re not clear about what equitable power is, you can watch a lecture that I recorded a few weeks ago—it’s called equitable remedies.  In that I explain what is an equitable remedy and what are those powers that a court may exercise.  In this lecture what I can explain is that small claims court does have equitable powers.  If you require an injunction in a matter where the value of your claim is $25,000.00 or less you can claim for an injunction; you can claim for a specific performance on a contract if the value is $25,000.00 or less; you can have an action for recovery of personal property in small claims court if the value is $25,000.00 or less; you can claim declarations. Sometimes you have a human rights matter that is added to a civil action, it’s not just a human rights matter but added to a civil action and it’s part of a small claims court proceeding, then you may seek the court’s declaration that the party was indeed discriminated against and that’s a declaratory relief that you can seek through small claims court.  All of these powers are available. 

In essence, what you want to understand is that with respect to Small Claims Court powers they are not much different than the Superior Court powers—except that the Small Claims Court deals with matters where the value of those claims are $25,000.00 or less. And so this brings us to our last point which is something that you should consider strategically.  Sometimes if your matter is for $25,000.00 or less you don’t have a choice but to go to Small Claims Court.  In fact, if you go to Superior Court for a matter that is less than $25,000.00 or $25,000.00, you may get penalized for going to Superior Court in terms of when the costs are awarded. In situations where your claim is more than $25,000.00 let’s say you are entitled to claim $30,000.00 or $35,000.00, it’s a matter of strategy whether you would like to pursue your case in Superior Court for $35,000.00 or forego $10,000.00 and go to small claims court.  Some of the things that you may consider is speed in Small Claims Court—the matters proceed much faster than Superior Court.  You can actually have a trial in 8 months, 9 months (within a year)—if you move your matter forward quickly. 2nd component that you want to consider is cost—whether you are represented or unrepresented, your cost in small claims matter may be much less because there are less steps involved in a small claims matter.  Then, finally, the process itself is much simpler.  You can easily represent yourself if you have done your homework and present your case and be successful at Trial.  These are some of the things to keep in mind before commencing a Small Claims Court action. Hopefully this lecture gives you a good understanding before you actually proceed with the small claims court matter.

Thank-you for watching and we’ll look forward to seeing you in the next lecture.

Automobile and Equipment Lease in Ontario: What Happens When you can’t make the Lease Payment

Tuesday, June 23rd, 2020

A large majority of Canadians lease an automobile or another equipment at some point in their lives. Yet, most of these people have no clear understanding of their rights and obligations in the event of a default – or when they are unable to make the lease payments. This lectures explains this specific issue in simple terms.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.


Show Notes:


Lecture Slides:

Welcome everyone.  This is Amer Mushtaq from YouCounsel.

A lot of people in Ontario and elsewhere in Canada lease automobiles or other equipment for their use.  At some point you may have leased a car or someone you know may have leased a car but the majority of people do not know or understand what happens when they are unable to make their lease payment.  We will cover this specific topic in today’s lecture so you can better understand what happens when a default or nonpayment of the lease occurs for any kind of equipment or automobile lease—we are not talking about residential leases.  We’re talking about automobile leases or equipment leases and equipment lease would include anything like a printer or TV or refrigerator or a car or airplane—any kind of equipment.  All these equipment leases are quite similar in terms of their basic structure and what happens when there is a default that occurs?  We will begin with our usual disclaimer that this course is not legal advice.  If you have any specific questions you should contact a lawyer or a paralegal or contact the Law Society of Ontario for a referral.

Now, what is a lease?  A lease is a contract. And it is a contract for renting a certain item for a specific time period.  The main thing you want to understand is that the lessee, i.e., the person who is renting does not have ownership of the item.  They are renting.  They can rent for instance a car for a day or for a week or for a month or for 5 years it is still a rent/a lease.  The time period is defined in the lease agreement—whether it’s for a day or for 5 years and then the lessee does not have the ownership of that item.  In some cases you may have the option to purchase that item at the end of the lease and that’s how the lease gets complicated.  Fundamentally, a lease is no different than anything that you take on rent.  As I said the leases get complicated. 

There are basically 2 types of leases.  The 1st one is called a True Lease.  True Lease is generally when the lease term ends and you return the item.  For instance, when you rent a car for a day or for a week—at the end of that day / at the end of that week, you actually go and return that car.  That’s an example of a True Lease—you paid the rent and then you returned the rental item back. What happens on a True Lease is that in case of any legal issues the common law principles of contract apply.  We’ll talk briefly about what those principles are and they’re important to keep in mind.  The 2nd kind of lease is called the Finance Lease.  A finance lease is really more like a security agreement for that item.  In other words the leasing company or the automobile company that’s leasing that item really do not want that item back.  That’s the way the lease is structured.  Essentially, they are financing that lease for you.  In finance leasing the lessee has a right to purchase at the end of the lease term.  That’s a general clause in that finance lease.  In finance lease, there is in Ontario an Act called Personal Property and Security Act that applies in addition to common law principles of contract.  It’s important because this particular Act provides additional rights and obligations on both parties.  It is important to consider this Act when there is a default—what are the options available to both parties?  The legal distinction between the True Lease and Finance Lease for the purposes of law is important.  The court when it’s deciding whether a True Lease or Finance Lease will review a number of factors in that lease agreement and then decide whether it’s a True Lease or not and then apply the legal principles accordingly.  It’s an important distinction legally and so you should understand whether you’re entering a True Lease or Finance Lease.

We’re talking about Default.  Default occurs in one of the instances when the lessee cannot make a payment, e.g., if you have rented that equipment and you are unable to make a payment.  In that situation it is termed as a default of the lease agreement.  What happens in that situation?  If a default has occurred the lessor or the leasing company is entitled to common law damages.  As we said—the usual principles of contract law would apply.  What is that basic principle?  The basic principle is that if the default has occurred and the lessee is unable to make a rental payment/lease payment, then the court will “put the plaintiff (that is the leasing company) in a position where he would have been in had the defendant (which is you—the lessee) fully performed his contractual obligations”.  What that means is if you have a lease of 5 years term and you are in default after one year, then the court is going to put the plaintiff at the end of 5 years—that means if you had made all your 5 year payments how much money would the plaintiff have received from you.  That’s the position—that is the future position.  The plaintiff will be put in that future position and that means the damages against you will be the amount of the balance payments that you have not made.  That’s the basic common law principle for damages.  But there are 2 qualifications to it which are important.  Common law damages are subject to the principles of mitigation and remoteness.  We will talk about mitigation today.  We will not talk about remoteness today.  Mitigation is an important principle to keep in mind in common law damages.  What mitigation essentially means is that whatever are these damages that put the plaintiff in that future position, whatever those damages are the lessor / the plaintiff / the leasing company has an obligation to reduce those damages or to help you reduce those damages.  That’s called the principle of mitigation.  Common Law damages are then whatever the damages are or whatever that future amount of damages is minus whatever the mitigation efforts that the lessor has made to reduce your damages.

Let’s explain that by way of an example that will probably make you understand it better.  You lease a car for $500.00 per month for 60 months.  In other words you’ll be paying $30,000.00 over the course of 60 months.  You make 10 payments and then you are unable to make further payments.  A default occurs at a 10 month period.   50 months is outstanding—pretty straightforward.  The damages are 50 times $500.00 is $25000.00 less mitigation.  This is the damages under common law principle.  This is the future position as if you have paid all of the money for 60 months—the lessor would have received $25,000.00 plus $5000.00 that you have already paid that’s $30000.00.  Now that the default has occurred damages are $25000.00 less mitigation.  Mitigation is that this lessor will now take back your vehicle and then try to find another lessee and rent that vehicle to that person.  In this situation let’s say that the mitigation occurs after 10 months.  The lessor is able to lease to someone else for the same payments ($500.00 a month) after 10 months.  For 10 months you pay the money, then you are in default and the lessor took it back from you and made efforts to lease it to someone else.  It took the lessor 10 months to lease it to someone else for the same $500.00 per month.  What are the damages? The total damages were 50 months in the beginning because you had paid for 10 and then 50 were outstanding.  Then they received the money for 40 months from someone else.  The damages, now, are 10 months which equals $5000.00.  This is the $25,000.00—which was the initial damages—now reduced to $5000.00.  The principle of mitigation as you can see is very helpful for the lessee because the damages can be reduced if the lessor is able to recoup its losses from someone else.  The lessor has to make these efforts to try to mitigate those damages.  What happens if the lessor does not want the responsibility of mitigating its damages?  This is an added obligation—you agreed to pay for 60 months now you’re unable to pay after 10 months.  The lessor has to take over this responsibility of taking the vehicle back finding other customers and then try to re-lease the vehicle or the equipment.  The lessor doesn’t want that responsibility—is there a way to get around this obligation of mitigation?  The answer is yes.

And it’s called liquidated damages.  The Lessor can have a clause in the lease agreement which is “a liquidated damages clause” and which allows the lessor not to mitigate the damages.  If you have a liquidated damages clause in your lease agreement the lessor may not have the obligation to mitigate its damages.  What is this liquidated damages clause?  (a) “Liquidated damages” is a genuine pre-estimate of the damages.  The court says that it must not be an amount which is excessive or unconscionable—it has to be a genuine pre-estimate.  (b) In our example, the pre-estimate really is $25,000 because that’s the amount of money that’s outstanding, less some discount for the immediate payment—that is being made to him immediately.  For example, the lease agreements would indicate about a 3% per annum discount on this to justify that it’s a genuine pre-estimate and not a penalty.  (c) In our example, if there is a clause like that (and I’ll show you an example of such a clause and it’s very common) the lessor puts a clause for liquidated damages—the obligation to mitigate then shifts onto the lessee in a way.  The lessor doesn’t have to take the car back and go find another lessee so that your damages could be reduced.  The obligation now is on you.  You can go, and if the lease agreement permits, find another person who can take over your lease, so that you can get out of the lease and not incur those damages.  Someone else can pay to the lessor.  Hence you notice these websites like or other lease websites, where lessees who believe that they are unable to make payments or they do not wish to continue with their lease agreement, go and look for someone else. 

An example, when you go on, you can find these amazing deals.  For instance, if someone wants to get out of a lease worth $25,000.00 (outstanding payment) and if you can help them out there you may be able to take over that lease for $20,000.00.  That person may pay $5000.00 so that you get the advantage of a cheaper lease and they don’t have to pay $25,000.  That’s the concept behind all these websites.  The obligation is shifted on the lessee.  The lessor doesn’t have to go around looking for another lessee.  The liquidated damages clause—when you look at your lease agreement there will be a clause called Remedies clause and in that Remedies clause all of the liquidated damages stuff is there.  A lot of people will not even read it.  They may not even recognize and may not even understand what that clause says.  I’m going to give you an example of a similar clause and you’ll see how complicated this may sound:

Upon a default (which is one of the example is when you’re unable to make payment) Lessor (leasing company) may: (a) terminate this lease; (b) declare the Stipulated Loss Value immediately due (and we’ll talk about what that stipulated loss value is), as liquidated damages and not as a penalty (it cannot be unconscionable or excessive); and (c) peacefully repossess the equipment without court order or without liability for entry or damage to property or require the Lessee to return the equipment to the LessorThe foregoing remedies available to the Lessor are cumulative and are in addition to all other rights or remedies now or hereafter existing under this lease or at law or in equity and maybe enforced concurrently and from time to time.  Where Lessee is in default and the Lessor exercises its rights in accordance with this Clause, Lessee must pay the Lessor’s costs of collection, repossession of the Equipment and enforcement rights including legal costs…”  

It’s a pretty extensive clause.  You will notice in lease agreements the clauses are very similar and these are very, very carefully drafted by lawyers.  You will have great difficulty in going around these clauses if you are in that situation.

Let’s talk about Stipulated Loss Value and how it is defined.  “Stipulated Lost Value is, as of the date for which it is being determined; (if your breach occurs as of today) the Rental Payments and other amounts then due (whatever is due); plus the present value of all Rental Payments scheduled to become due for the rest of the Term (that’s 15 months for our example above) discounted from their due dates at 3% per annum (so some discount); plus the present value of the amount that Lessee is obliged to pay or that it may optionally pay to acquire all of the Equipment at the end of the Term, if this Lease expressly gives Lessee the obligation or option to do so…” so on and so forth.  It is very, very restrictive very, very solid clauses that you need to face.

What are the lessons you take from this lecture—that if you are in a situation where you’re leasing some equipment or car and chances are you will, then 1st of all you must carefully review and understand the lease agreement and especially the remedies clause.  2nd, then understand clearly your rights and obligations in the event of a default.  You don’t want to be in a situation where the default has occurred and now you are looking at your lease agreement and you realize that the default clause and the clause for remedy is so strict and so harsh that you have no option and you are unable to negotiate anything with the Lessor.   A lot of people are optimistic when they are leasing any equipment (or vehicle).  They believe that they will be able to make those payments but there are all the circumstances when you are unable to fulfill your obligations.  The only way to challenge (as you may have figured out) a liquidated damages clause is by showing that the clause is a form of penalty rate which is unconscionable—it is excessive.  This is a separate topic and we will cover it in a separate lecture. 

Hopefully, this lecture gives you a sense of understanding better your lease agreement with respect to a default.  Hopefully, when you lease a vehicle next time or any other equipment, you have a better understanding and you are able to negotiate a better deal.

I thank you for watching and we look forward to seeing you in the next lecture.

Legal Options for Sexual Harassment/Discrimination Victims

Tuesday, June 23rd, 2020

Victims of sexual harassment, misconduct and discrimination are often not familiar with the complex legal framework that deals with these issues. This lectures explains the basic legal options available to the victims of sexual harassment, misconduct and discrimination and offers tools to select a legal recourse that is most suitable for the individual circumstances. The lecture also provides some examples of comments or conduct that may constitute sexual harassment, misconduct or discrimination.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.


Show Notes:


Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

If you are a victim of sexual harassment, sexual misconduct or discrimination within the employment law world this lecture will provide you with some of the basic legal options that may be open to you with respect to your complaint about these issues. From my own practice, I have been dealing with sexual harassment and discrimination issues for a long time in the employment law world through the courts and through the Human Rights Tribunal. This issue has been in existence for a while but we all know that due to recent news media coverage this issue has become a more public issue and there is a larger discourse that is taking place.  In that context this lecture purely deals with some of the legal options that may be available to you if you have suffered sexual harassment, sexual misconduct or discrimination.  We begin as always with a disclaimer that this course is not legal advice.  If you have any specific questions, you should contact either a lawyer or a paralegal or contact the Law Society of Upper Canada in Ontario for referrals to a lawyer or paralegal.

What is sexual harassment/discrimination?  A lot of times it is obvious—sometimes it’s not.  It is important to explain legally what would constitute sexual misconduct, harassment or discrimination in a legal framework so you can understand that if you have suffered any of these issues (this kind of conduct), then that may amount to sexual misconduct or harassment.  I will give some of the examples to explain what could constitute sexual harassment and discrimination.

  1. Asking for sex in exchange for a benefit or a favor—which is pretty straight forward.
  2. Repeatedly asking for dates, and not taking “no” for an answer. We understand that as well.
  3. Demanding hugs—demanding hogs depending upon the circumstances may have different connotations. As you know from the case against Albert Schultz from Soulpepper Theater, one of the allegations raised by the complainants is that he demanded hugs or he had certain hugs that the complainants felt were completely inappropriate or were sexual in nature.  That could constitute sexual misconduct or harassment. 
  4. Making unnecessary physical contact including unwanted touching.
  5. Using rude or insulting language or making comments towards women (or men, depending on the circumstances)
  6. Calling people sex specific derogatory names.
  7. Making sex-related comments about a person’s physical characteristics or actions.
  8. Saying or doing something because you think a person does not conform to sex-role stereotypes.
  9. Posting or sharing pornography, sexual pictures or cartoons sexually explicit graffiti, or other sexual images.
  10. Making sexual jokes.
  11. Bragging about one’s sexual prowess.
  12. Comments: And making certain comments, for example, making comments that a woman has acquired her position in the organization because she slept her way to the top.
  13. Employers could also be liable for sexual harassment for comments or conduct that took place during any business trips, company parties and functions.
  14. Over scrutinizing an employee’s work or criticism in a sexual harassment context; and then
  15. Comments about appearance: “you don’t look pretty today”; or sometimes addressing a woman as “young lady” in a patronizing manner; or comments like “let’s run off and get married”.

 All of these are some of the examples of conduct that will constitute sexual misconduct, harassment and discrimination.  There could be a variety of other ways in which sexual misconduct can be carried out.  This gives you a basic sense of some of the ways in which sexual misconduct and harassment or discrimination has taken place in the Canadian employment law world.

What are your legal options?  It’s important to understand that you may have a large variety of legal options available to you if you are a victim of sexual misconduct or harassment or discrimination.  To get a better understanding of what are those legal options and which legal option may be the most appropriate for you, will be a good tool to have.  Let’s talk about legislation.  Sexual misconduct, sexual harassment or discrimination is already covered under a variety of federal and provincial legislation.  I’ll give you examples of some.  The first one that comes to the top of my mind, is obviously, the Criminal Code.  There are specific sections in the Criminal Code that deal with sexual misconduct, assault and harassment.  We will talk about that later.  If you are dealing with Criminal Code legislation, then you know that it is a domain of the police (the Crown).  Once you complain to the police, the police then decides whether it’s an appropriate circumstance in which charges should be laid against the accused.  Then they take-over that matter, and the Crown is the one that prosecutes the case on behalf of the public. Canada Labor Code is another legislation which deals with federally regulated employers.  If you are an employee who works for a federally regulated company—mostly these are banks, railway and telecommunication companies which are generally federally regulated companies.  You need to know whether your employer is federally regulated or not.  If it is, then, the Canada Labor Code is the legislation that may apply in your specific circumstance.  Then we have human rights legislation.  We have the Canada Human Rights Act which, again, deals with federally regulated employers and we have the Ontario Human Rights Code that deals with provincially regulated employees (which are based in Ontario).  Other provinces have similar human rights legislation that deal with human rights issues in those provinces.  Then we have an Ontario Occupational Health and Safety Act and other provinces may have similar legislation with respect to health and safety.  If you are a unionized employee, then you have the option of bringing about a grievance under the collective agreement and there’s a separate process for that.  You launch a grievance under the collective agreement.  If you’re bringing a court action (a civil action), then you can have a tort action—a claim for a tort of harassment, a tort of assault and battery, tort of intentional infliction for causing mental pain and suffering.  There may be other torts that may also be available. These are all the legislation and the legal avenues that are open to you with respect to sexual harassment, misconduct or discrimination.  Let’s look into each one of them briefly.  We will not get into a lot of detail.  The idea is to give you an overview of these options.

Under the Criminal Code a sexual assault is defined as an assault in which the complainant’s sexual integrity is violated.  It’s a pretty broadly defined category and it all comes down to the specific circumstances of the case and the court will determine whether the complainant’s sexual integrity was indeed violated and, if it was, then it will constitute assault.  Some of the things that you want to keep in mind with respect to a criminal sexual assault is, for example, the accused does not need to have a sexual purpose.  Even if the accused did not have a sexual purpose, the conduct may itself amount to sexual assault.  Sexual gratification of the accused is also not essential for it to constitute sexual assault.  When the accused has disciplined or humiliated someone in a sexual manner, that may also constitute sexual assault. Then purported “educational” performance could also be a sexual assault, etc. Again, the example of the recent issue of Saltpepper Theater, the Albert Schultz case comes to mind in which one of the accused alleged that Schultz provided gave certain directions in their rehearsals with respect to some of the sexual conduct which they believed were inappropriate or amounted to sexual harassment—purported educational conduct may also amount to sexual assault. Part V of the Criminal Code entirely deals with sexual offenses, public morals and disorderly conduct.  You can review it to understand some of the clauses in the Criminal Code. The Criminal Code is available online you can simply google it.  Similarly Part VIII deals with offenses against the person and reputation. Then Sections 265, 271, 272, 273—also deal with sexual assault related charges.

Canada Labor Code, as I said, deals with federally regulated employers.  It has Section 247.1 which defines sexual harassment as:

 In this Division, sexual harassment means any conduct, comment, gesture or contact of a sexual nature

(a) that is likely to cause offence or humiliation to any employee; or

(b) that might, on reasonable grounds, be perceived by that employee as placing a condition of a sexual nature on employment or on any opportunity for training or promotion.

Any humiliating conduct common gesture or conduct of sexual nature which causes these kinds of conditions may be considered sexual harassment.  You will notice from these definitions that the definition of sexual harassment or misconduct is very broadly defined because it really depends upon the individual circumstances of the case.  You cannot really make a list of the kinds of conduct or comments or gestures and then impose that list to be the definition for sexual harassment because there are so many ways that it can be done that the Court and the judicial bodies need to have a much broader definition to deal with these kind of issues.

Human Rights Act, as I said is a federal legislation and section 3(1) deals with discrimination issues and it outlines all kinds of discrimination that is prohibited on the basis of race, national or ethnic, origin, religion and in particular sex and sexual orientation that is covered here which will be the underlying grounds to deal with any sexual harassment misconduct or sexual discrimination issues. Similarly, section 10 deals with the employment situation—for an employer not to have policies or practices for recruitment, hiring, firing, promotion and whatnot that may deprive or tend to deprive an individual or a class of individuals of any employment opportunities on a prohibited ground of discrimination.  Prohibited ground of discrimination, as we noticed earlier are, the grounds of sex and sexual orientation.  It will cover sexual harassment and sexual misconduct. Section 14(1) and (2) are also Human Rights Act discrimination clauses.  It now expands to discrimination with respect to the provision of goods, services, facilities or accommodations.  Some of the commercial transactions that may happen in public or with the general public and in those contexts if you are a victim of sexual misconduct or harassment—for a federally regulated company you will look towards the federal Human Rights Act to have that complaint against that entity or individual.

Going to the Human Rights Code—this is Ontario.   Very similar legislation in the Human Rights Code—as in the Human Rights Act. There are some differences—but generally the theme is the same, that there cannot be any discrimination on the basis of sex which covers sexual misconduct and harassment with respect to services, accommodation, contracts and employment.  It’s not just the employment context in which sexual misconduct is prohibited but also with respect to any services, accommodation and contracts.  On a large number of commercial transactions, in which you may be engaged, if you experience sexual misconduct harassment or discrimination then you may have grounds to file a complaint against the perpetrator, against the accused at the Human Rights Tribunal under the Human Rights Code.  Sexual harassment is specifically defined in section 7. Then it deals with sexual solicitation by a person in a position to confer benefits.  As we generally know from the stories that have come up, that sexual harassment (sexual solicitation) in a lot of cases is done by a person who is in some position of power over the victim.  That’s sort of the common theme.  It’s not limited to that but generally speaking that’s the theme that we notice in most of these cases. Then section 8 of the Human Rights Code specifically states that if the victim comes out and files a complaint for sexual harassment then the employer cannot—or the party cannot reprise against—cannot penalize that person for making that complaint.

Occupational Health and Safety Act is a legislation that deals with health and safety in Ontario.  In section 1(1) of this Act, workplace sexual harassment is included in all kinds of workplace harassment.  Then the Act goes on to define workplace harassment in specific terms: “engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought to reasonably be known to be unwelcome.”  It defines, again, very broadly, what could come—what could constitute workplace sexual harassment.  Then it further defines sexual solicitation and advances.  The idea is that it’s a broader definition. It can capture a variety of circumstances in which a conduct or comment can be defined as workplace sexual harassment. Within the Occupational Health and Safety Act Part III.0.1 is the entire part that deals with workplace harassment and violence.   It has all these clauses for employers: programs, policies and investigation procedures to deal with any kind of workplace harassment and violence.  It also provides a method for filing a complaint with the Ministry of Labor.  Then Ministry of Labor can send inspectors, who have significant powers.  They can investigate the complaint and they can impose on the employer to engage external third party investigators to conduct the investigation with respect to the allegations of sexual misconduct or harassment.  

Now if you’re a unionized employee, your first option could be to file a grievance pursuant to the collective agreement.  Unionized employees are part of a collective agreement.  It’s like a contract between all of the unionized employees on one side and the employer on the other side.  The ‘collective agreement’ deals with all kinds of issues, all kinds of disputes and sexual harassment being one of those issues.  You do have the opportunity to file a grievance.  Essentially, if you’re a unionized employee you go to your union steward, you file a complaint, they fill out a form that is called a grievance form and that form is submitted or served on the employer.  Then that process takes its own course.  It’s called an arbitral process.  If the parties are unable to resolve that issue, then they go to an arbitration where an arbitrator decides on the merits of the allegations.  If the victim believes that the conduct was serious enough to have criminal charges laid, then they obviously have the option to go to the police and report the incident.  They can also file a human rights complaint either with the Canadian Human Rights Commission (if it’s a federally regulated employer) or with the Human Rights Tribunal (if it’s a provincially regulated employer in Ontario).  You want to keep in mind that if you are a unionized employee you actually have a limited opportunity to go to a civil court. And you may remember or you may not the Jian Ghomeshi case.  Prior to the situation where the police (the Crown) had laid criminal charges against Mr. Ghomeshi, when the allegations against him had come forward, he had actually launched a civil case (civil claim) against his employer for defamation and some of the other allegations that he had raised.  You may know this or may not but he had to withdraw that case.  I believe he ended up paying some costs (legal costs) to the employer CBC in that case—primarily because he was part of a unionized workforce—he did not have the option to go to court and sue the employer.  His only recourse being a unionized employee was to actually file a grievance against CBC and not go to court.  I believe he ended up going to the court and then he had to withdraw the case.  If you’re a unionized employees you have to be absolutely sure what are your options with respect to a legal complaint and recourse.  Going to court may not and not in all cases but in some circumstances you may not have that option to take the employer to court.

Now civil action obviously is an option.  Civil action is a court action in a court and it could be based on a number of causes of action.  It could be a clear case of Torts: could be a tort of harassment, assault, battery, intentional infliction of mental suffering, etc.  I have a few lectures on different kind of torts that you may want to review if you want to understand the concept of a tort action a bit better.  Then you have the option of claiming a breach of statute.  Human rights statute that we have just talked about, Occupational Health and Safety Act –you can claim that the employer of that individual against whom you have a court action breached these statutes and therefore is liable to you for your claim.  Then, you may have the option of suing the employer in the civil court because the employer may have vicarious liability—may have liability for the conduct of the employee who is accused of the sexual misconduct or harassment or discrimination.  Civil action is another option. 

Now when you have all these options you obviously need to think about which option, which legal recourse is suitable to your specific circumstances.  We’ll talk about some of the things that you need to consider before you actually decide what direction you want to take to file your complaint or grievance. 1. is the internal organization remedies.  It is always a good idea if you are able to file a complaint within your own organization. If you are an employee within the structure, with the Human Resources or the superiors in your company—then that is an approach that you must take. Of course, there are circumstances in which filing a complaint internally is not practicable.  For instance, if the person that you have to file a complaint with is the person who is in fact the accused—again the example comes of Mr. Schultz.  In this case he was a Director of The Soulpepper Theater, and, I believe his spouse was also an Executive Director. Both those individuals were in the highest level of command in that organization.  It may not have been a practicable approach to file complaints against Mr. Schultz with him or a spouse.  If you work in an organization where you can easily with confidence and with some comfort file a complaint within the organization, then it’s a good idea to at least file a complaint and see if the employer or the company takes this complaint seriously and then provides remedies or takes action. 2. Second thing, you want to consider is Burden Of Proof.  It’s very important, a lot of people understand this, maybe not, that the burden of proof in criminal and civil cases is different.  We know at least from the T.V. shows that in criminal cases Crown or the prosecutor has to show beyond a reasonable doubt that the accused did in fact do what he or she is charged for.  The burden of proof is much higher. The Crown has to prove beyond reasonable doubt.  Whereas, in a civil court the burden of proof is a balance of probabilities—which means, more likely than not, it’s just a little more than 50%.  If you are the victim and you have lost a civil action against the accused, then, on a balance of probabilities your story should be more plausible (more believable) than the defendant and if you are able to do that then you are successful in your civil action.  It’s important to recognize what is the burden of proof in this case.  3.  Another component is the opportunity to examine evidence before trial and this is an important factor.  A lot of people may, or may not know this, but for instance in criminal cases the entire burden is on the Crown to produce any and all evidence to show that the accused did in fact what he or she is charged for and so the accused does not even need to testify.  The accused is not even needed to respond in terms of producing any evidence.  He or she has to respond to the questions but does not need to produce any documentary evidence to support his or her case and so the entire burden in a criminal case is on the Crown and the accused does not need to do anything.  Again, we come back to the Ghomeshi case—where we all know that at the time of trial when the complainants were cross-examined by Mr. Ghomeshi’s counsel, there was this damning e-mails, that were brought forth that Mr. Ghomeshi had kept, which the counsel produced and cross-examined the complainants of those e-mails and those e-mails were not provided to Crown because there was no legal requirement to produce that documentary evidence to crown prior to trial.  This was almost done in a theatrical manner in which the e-mails were produced and complainants were taken by surprise and in fact the Crown was taken by surprise.  In a civil system that’s not the case.  In a civil system all of the evidence that both parties—accused and the defendant/s/ complainant and the defendant / plaintiffs and the defendant—are  going to rely on a trial needs to be exchanged before-hand and in fact parties have the opportunity to ask questions which is called examination for discovery or depositions in American cases.  You have full opportunity to understand what kind of evidence will be against you and the other side will have full opportunity to understand what kind of evidence is against them.  In a civil matter the evidence is already present and then you test it out at trial.  A very different approach—different process in a criminal matter and in a civil matter. 4. You want to think about how the trial and the investigation process is conducted because trials are significantly stressful, especially if you are a victim of sexual misconduct or harassment. The trial process is hard on those victims. They have to relive the experience, their credibility is questioned and tested and whatnot.  It’s a harder process and you need to understand what kind of process you are going to go through to have your matter judicially decided and whether you are comfortable to deal with that process. That’s an important consideration.  5.  Then what kind of remedies are you seeking—what is it that you want out of this process? If you want that person to go to jail and have criminal responsibility for his or her conduct then criminal allegations, criminal charges are the way to go.  With respect to civil matters and civil actions, I think it’s important to understand that in large part a civil court is essentially going to provide a monetary remedy. Yes, there will be a recognition in the judgment that the accused was charged with or was accused of a misconduct and he or she was found guilty of it. Obviously, there is value of that judgment. At the end of the day it’s the court’s power to provide a monetary award—that is what drives the civil action predominantly.  At some point the judge will assign a certain monetary value to your suffering and then award that money to you either in the form of compensatory damages or punitive damages.  In the end that’s what it is.  If you’re looking for systemic remedies, then the court may not be the right place because systemic remedies is the domain of Human Rights Tribunal or Human Rights Commission because they have larger powers with respect to these.  They can require the employer or the company to institute policies, conduct human rights audit, go through training and whatnot.  The larger systemic remedies are generally the domain of these specialized tribunals like Human Rights Commission and Human Rights Tribunals.  It is important for you to recognise what kind of remedies may be available to you in a specific course of action and whether that’s suitable to you or not. 6.  Finally, I made the comment about no forum shopping or multiple proceeding.  Let me explain what is meant by this.  The idea behind a judicial proceeding is that you pick one avenue (one course of action) and have your legal matter adjudicated in that judicial body and then whether you’re successful or not you cannot then go to another judicial body and try to relitigate it again.  For instance, if you are a unionized employee and you filed a grievance and let’s say you were not successful in your grievance.  You don’t have that opportunity now to go to Human Rights Tribunals and file a complaint for the same or similar facts or the basic underlying story is the same—that option is not there.  That’s considered forum shopping.   You cannot pick and choose. Similarly, you cannot have multiple proceedings. You cannot file a grievance on one hand and then file a human rights complaint on the other hand or commence a court action on the third side.  You’ll have to decide at the outset which direction you want to take and then you’ll have to stick with it or you have limited opportunity to withdraw and then go to the other forum.  It is something that you have to consider at the outset. Now you can have a criminal proceeding and you can have a civil proceeding.  That is allowed.  But within the civil proceeding context, you don’t have the opportunity to have these multiple proceedings taking place.

These are some of the factors, considering your circumstances, you will have to choose. Hopefully, you will not need to rely on this lecture. Hopefully, you don’t experience any of those sexual misconduct or harassment things that we have briefly talked about.  But if you are a victim of sexual misconduct or harassment, hopefully this lecture will provide you an overview of some of the legal options that you may have.  Thank you for watching and please share your comments with us and if you’ve any questions please feel free to contact us.

Legal and Equitable Remedies- You Won’t Get What You Didn’t Ask For

Tuesday, June 23rd, 2020

A claimant must clearly set out the relief/remedy it’s claiming for the Court. To do so, the claimant must understand the different kinds of legal and equitable remedies available. This lecture provides a basic understanding of the different kinds of legal and equitable remedies.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.


Show Notes:


Lecture Slides:

Machine Transcription:

Welcome everyone.  This is Amer Mushtaq from YouCounsel.

When you go to court, that is, when you commence a court action you are asking the court to grant you some sort of relief—either it’s in the form of money or it could be something else.  What are the different kinds of relief that you can ask from the court?  It is important for you to understand some basic concepts so you can include those reliefs appropriately in your statement of claim.  If you don’t ask for relief, the court, generally, is not going to grant you that relief on its own.  In this lecture we will talk about those legal and equitable remedies.  We begin with our usual disclaimer, that this course is not legal advice.  If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

What is a Remedy? A Remedy is a Relief that you’re asking from the court.  As I mentioned the judge or the court will not award you a remedy if you have not asked for it.  It’s important for you to include that and also that the relief or remedy that you’re asking must be within the power of the court to grant.  This is not the topic we’re covering in this lecture but it is important for you to understand the jurisdiction of the specific court which can grant you the relief.  A common example could be that if you want the defendant / the wrongdoer to pay you, let’s say, $50,000.00 for the breach, you cannot go to small claims court and ask for that relief because small claims court has limited jurisdiction of $25,000.00.  Even if you are successful in your trial at a small claims court you will only get the relief for $25,000.00 because the judge does not even have the power to grant to you more than $25,000.00.  Similarly, if your matter is before the human rights tribunals—the human rights tribunals only has the power to deal with human rights issues—discrimination issues.  If you ask for a breach of contract remedy which is unrelated to a human rights issue from a human rights tribunals, it will not award you that relief or remedy because it does not even have the power to give you that relief.  It is important to understand both (1) what are the kinds of remedies that you can ask from a court / from a judge / from a tribunal; and (2) whether that judge / that court has the power to actually grant you that specific relief.  

There are 2 basic types of remedies: [A] one is called legal remedies; and [B] the 2nd is called equitable remedies.  We will explain what are these remedies and what are the differences between the two.  To understand their distinction we will quickly talk about a brief history of where these remedies originate from.  Few centuries ago what used to happen was that people who had a legal dispute will go to a court of law.  The court of law had set of rules or principles and they will apply those principles in those specific circumstances and will come up with a resolution.  Sometimes the application of strict, legal rules would result in harsh results/harsh resolution of the dispute.  People had no choice but to either accept it or what they will do is go and appeal to the King.  Then the King had the power to look at the fairness of the entire issue and grant certain reliefs on the basis of moral values that the king had or the society had at that time. Some rules were harsh and they will go on appeal to the king and what happened was that a lot of these cases were going to the King.  The King was busy so then assigned this duty to his Chancellor.  Then the Chancellor formed this court called Chancery or Court of Equity.  A lot of these cases will go to the Court of Equity.  This was not a court of law this was a court of equity and it’s not considered a legal resolution of the dispute.  It was based upon certain natural fairness principles (based on the moral values of the society). At that time, in the middle ages, there were courts of common law and courts of equity that were developed—providing different functions.  As I mentioned the court of equity will apply the principles of natural laws / basic fairness principles and then use their discretion in certain circumstances where the rigid application of the law will result in an unfair resolution.  Presently, all of the courts in Canada have the power to apply both law and equity.   There was an Act called the Judicature Act which allowed all courts to exercise the power to grant legal remedies and equitable remedies.  What you want to keep in mind is that the distinction between legal remedies and equitable remedies remains.  It is important for you to understand that there are 2 different kinds of remedies and the court may have the power to grant both remedies.  It is important for you to understand under what circumstances you will ask for legal remedies in your case and under what circumstances equitable relief will be appropriate.

One example that comes to my mind about where the strict application of the law will result in a harsher resolution is: Back in 2009 in the UK a person called John had intended to give his farm to another person, David, when he would pass away. He drafted /created a will in which he bequeathed / he gave his farm to David.  David had worked on this farm for 28 years so there was some understanding between the 2.  John created that will but that Will got destroyed—so the Will didn’t exist.  John passed away.  When John passed away there was no will in existence.  David had an understanding that there would be a Will that will grant him the ownership of the farm but the will was gone. Under the strict application of the law, the rules that will apply is that, that property (that farm) will now be transferred to John’s relatives (blood relatives).  There are specific rules about when someone dies intestate.  Intestate is when someone has no will and he or she passes away—then those rules will come into effect.  In the resolution or the end result of that will be that David would not get his farm.  David would apply to these courts and under these strict common law rules David would not have gotten the farm.  But the court then applied an equitable principle called equitable estoppel—we are not going to talk about that principle today.  Under that equitable remedy the court was able to grant the relief to David so that he could have the farm as a result.  This is one example of where the principles of equity will come in to assist an aggrieved party and provide a resolution which is more fair as opposed to a legal resolution which has unfair results.

Ok, so let’s talk about legal remedies.  The Court’s basic power is to award monetary compensation which is called damages. A simple example could be that if you have a car accident and have an injury or a broken leg or something the court will grant to you certain money as a result of that injury (monetary compensation is the most common way the court grants any relief).  Then there are different kinds of damages.  It is important to understand at least fundamentally that there are different kind of damages—which have different criterion—in order for you to get those damages. What are some of the common types of damages (1) first one is called Compensatory damages: Compensatory damages are called actual damages.  These damages are for an actual loss.  An example could be that you sold your car to someone far $30,000.00.  That person paid you $5000.00 as deposit, took the car away but did not pay you the remaining $25,000.00.  Your actual loss based on that contract (based on that deal) is now $25,000.00.  You go to court and ask for those compensatory damages for your loss of $25,000.00.  That’s the most common type of damages compensatory damages. (2) Then there is another kind called General damages. These are damages for non-monetary loss that arises from that breach of contract.  An example could be human rights damages—where someone claims that he or she has suffered injury to their dignity and feelings of self-worth.  These are non-monetary losses—losses are for pain, suffering and anxiety—all of these damages could be general damages. (3) Punitive damages, as the name implies, are damages which are not compensatory damages.  These damages are essentially to punish the wrongdoer (the defendant) who has done something wrong.  They act as a deterrent to the society so that others should not conduct themselves in the same manner.  Punitive damages is another form of damages. (4) Liquidated damages—it’s a reasonable estimate of the actual loss. Sometimes it will be hard to figure out the exact losses when a breach occurs.  Parties can agree to a reasonable estimate. It has to be a reasonable and fair estimate of the actual loss.  It cannot be exaggerated, cannot be excessive or it may be considered a penalty for the default.  Liquidated damages is another example. A common example is: if you are a contractor who has provided certain services, that the amount of services were agreed upon—let’s say it was a plumbing job.  You had agreed to provide plumbing services for $2000.00.  You provided those services but the other side did not pay for it. You rendered an invoice.  That will be an example of liquidated damages because the value of the actual damages or loss was set and agreed upon. Liquidated damages is another example of damages. (5) Aggravated damages: is for the aggravation of the injury.  If the conduct of the wrongdoer cause aggravation of certain injuries and these could be mental or emotional injuries or other kinds of injuries, then you can get aggravated damages for that. (6) Then there’s consequential damages which are indirect damages or incidental damages.  These are damages that are not arising from the actual breach of the contract but being affected by the wrongdoers conduct. An example from a famous case I believe Hadley vs. Baxendale—in that case a party (a manufacturing facility) required a part from a different location.  Once they had the part they will process certain orders for other clients.  These were orders in a significant amount.  They relied on a courier company to get those parts and deliver those parts in a specific time period. Once they had those parts they will be able to process those orders.  What happened was the courier company failed to deliver those parts in time.  As a result of that failure the aggrieved party then lost significant amount of money because they could not process the orders in time and suffered significant loss. This kind of loss is really the breach is simply that the courier company could not deliver the product in time.  In normal course of action if you pay $200.00 for the courier company to deliver the product and if they fail to do so, then your normal damages will be $200.00 because they failed to complete the contract.  In this situation that failure to complete the contract resulted in a $1,000,000.00 or so of losses and so those losses were incidental or indirect losses.  They are called consequential losses. In certain circumstances not in all circumstances, you can’t go around suing courier companies for all kinds of indirect incidental losses.  There is a specific criteria for you to qualify for these kind of losses.  There could be consequential losses that the court may grant as well. 

Now with respect to Equitable remedies, the most common equitable remedy is called (1) an Injunction. An injunction is essentially requiring a person to do something or stopping the person / prohibiting the person from doing something.  An example could be that a developer is clearing the land for a major development project.  There are some old trees on the property.  They will end up cutting down those trees. You believe that the developer should be stopped from cutting those trees. Then you will bring an injunction in the court and get a court order which is an equitable remedy—which will stop that developer or any other wrongdoer from doing something that they’re doing.  Similarly, if someone is not doing something, then you can bring an injunction to compel that person to do something.  Injunction is an equitable remedy that is available.   (2) Specific performance is another equitable remedy.  In this situation the court can require a person to perform a contract. For example, you purchased a small house in Toronto for $2,000,000.00.  You paid your initial deposit. You are ready and willing to complete the contract but at some point the seller decides not to complete the contract and the seller is denying you that house now.  Ordinarily, this is a breach of contract case and the court will award you damages.  In some limited circumstances the court may actually compel the seller to complete the contract that he or she has agreed upon.  That that requirement, that compelling of someone to complete the contract comes under the category of specific performance.  Again there are specific requirements for you to be able to get a relief of this kind.  It’s not generally available but the relief itself is possible under equitable remedies. (3) Constructive trust is another equitable remedy.  There are many more—constructive trust—could be where someone misappropriated your value of property.  At that time the value of property was less.  Subsequently the value of the property increased or the person who took away or misappropriated the property then sold it off to an innocent 3rd party.  You want to be able to enforce your right against that innocent 3rd party, then you can claim for a constructive trust. Under equitable remedies (4) Rescission.  An example of rescission could be that you entered into a contract which was validly entered.  You want that contract to be completely rescinded. Under the specific circumstances of your case, you can ask the court for that remedy.  (5) Rectification is another remedy in which a court may rectify a specific contract (in certain very limited ways rectify the contract) or rectify a Will in specific circumstances where the court does have power to grant this equitable remedy.   

These are sort of the basic legal and equitable remedies.  These are a few but there are many more.  It is important for you to understand. Why? Because when you commence your court action (when you prepare your statement of claim) you are describing the dispute but you must clearly set out in the statement of claim what is the relief or the remedy that you’re asking.  If it’s a monetary remedy you have to set it out—whether you’re claiming one $100,000.00 or $500,000.00.  You have to set it out in your claim and also what kind of damages.  Is it a compensatory damages claim? Is it a liquidated damages claim? Is it a punitive damages claim? Or multiple of those.  You have to clearly set it out and when you set this out you, need to provide all the necessary facts in your claim that justify the award of the remedy that you’re claiming.  For instance in the case of punitive damages, we know under the legal principles that the court will grant punitive damages only when the conduct of the wrongdoer (the defendant) was high-handed.  If it was a high-handed conduct, you have to provide those facts in your claim that explain or justify that the conduct was indeed high-handed. If the conduct occurred in the normal course of business and the conduct wasn’t high-handed and you claim punitive damages, those damages will not be awarded to you.  Aside from your story about the dispute it is important to clearly outline and specify the kind of claim of the remedies that you’re seeking and you want to make sure that whatever the factual basis is required to get those damages (to get those remedies) those are stated clearly in your statement of claim.  Hopefully, this gives you a sense of the legal and equitable remedies, their distinctions and empowers you to obtain an appropriate relief from the court.

Thank-you for watching and we’ll look forward to seeing you in the next lecture.

How to Complete ‘Information For Court Use Form’ in a Civil Action in Ontario

Tuesday, June 23rd, 2020

A civil court action in Ontario can be started in three simple steps (these steps are covered in a separate video). One of these steps is to complete “Information For Court Use Form” – Form 14F. This lecture explains how this form is completed and what needs to done after the form is completed.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.


Show Notes:


Lecture Slides:

Machine Transcription:

Welcome everyone this is Amer Mushtaq from YouCounsel.

When you have to commence a court action in the Superior Court of Justice in Ontario, you have to take specific steps to get into the court system and commence your court action.  We have a separate lecture on a summary of those steps and what those steps are.  One of those steps is to complete a form which is called the Information For Court Use Form.   In this lecture, I will explain to you what this form is—how do you complete it and what do you do with that.  We begin with a disclaimer that this course is not legal advice.  If you have any specific questions you must contact a lawyer or a paralegal.

In the previous lecture we started with an example and will continue with that.  The example was Mary loaned $100,000 to John.  John has refused to pay back and Mary needs the court’s help to get her money back or get a court order against John, so she can enforce that judgment against John.   Assuming that you are Mary and you need to commence this court action, how do you get into the court system?  In our previous lecture we explained that there are two legislations that are the most relevant ones (1) the Courts of Justice Act and (2) the Rules of Civil Procedure.  The Rules of Civil Procedure is the one that you need to follow to get into the court system and move your case all the way through to Trial and beyond.  You need to know all of these Rules. We had also explained in the first lecture that there are three steps to commence the court action.  You have to complete the Information for Court Use Form, you have to complete a Statement of Claim and you have to pay certain court fees.  For all of these details please review the lecture on “Commencing a Court Action”.

Now, with respect to steps for completing the Information For Court Use Form, your first step is obviously to get the form.  You can go to Google and can find that the forms are available for free.  Type in Rules of Civil Procedure forms.  That will take you to the government link which provides all of the forms that are related to Rules of Civil Procedure and we know that Form 14F is the one that deals with Information For Court Use.  That’s the form.  Here you can download it as a pdf or as a Word document.  We will open it as a Word document.  Once you have downloaded the form the next step is really to complete the form.  Most of the information is already in here. 

The first thing you have to type in (put the information in) is where it says “(General Heading)” that is where your information and the defendant’s information comes in. Let’s say, Mary Kozner is the plaintiff.  You type in her name:

            Mary Kozner, plaintiff


               John Smith, defendant  

That’s the information court needs to know who is the plaintiff and who is the defendant.  You put that information in there.  Moving down to question number one the court asks—this proceeding is either an action or an application:

This proceeding is an: [√ ] action     [ ] application

And we have a separate lecture on the difference between an action and an application.  If you don’t know please check that lecture out.  For the purposes of this lecture we’re assuming that this is a court action and so you just check this box for the court action.

Question number two:

Has it been commenced under the Class Proceedings Act, 1992?

[ ] yes       [√ ] no

If this action is a class action? But if you are individually issuing it and it’s not a class action then the answer is no.  You check that box.

Then the third question which is quite important is that if the proceeding is an action, which it is, does Rule 76 (simplified procedure) apply?  What is this Rule 76?  We will have a separate lecture on it but briefly speaking you can read here that:

“Subject to the exceptions found in subrule 76.01(1), it is MANDATORY to proceed under Rule 76 for all cases in which the money amount claimed or the value of real or personal property claimed is $100,000 or less.”


[ √ ]

Yes                  [  ]        No

Mary is claiming $100,000.  Let’s check this box because we want it to be commenced under Simplified Rules,  Rule 76.  

Scrolling down to the fourth question, I will make it a bit bigger so you can see it better.  Question number four says:

  1. The claim in this proceeding (action or application) is in respect of:

Note:  Subject to the exceptions found in subrule 76.01(1), it is MANDATORY to proceed under Rule 76 for all cases in which the money amount claimed or the value of real or personal property claimed is $100,000 or less.

What kind of claim is it? Is it relating to bankruptcy, collection of debt, constitutional law, construction law, so on and so forth. There are some general categories and these are just for the course statistics.  You pick one that is the best category that you believe your case relates to.  In this case it’s a collection of debt.  You check this box.

            Collection of liquidated debt               [√  ]

If your case is about something else then you check that box. 

All four questions are answered.  You print this form and then you sign here and you put the date here.






I certify that the above information is correct, to the best of my knowledge.










Signature of lawyer




(if no lawyer, party must sign)


Once you have done that then your form is ready.  You have downloaded the form; you have completed the form, you print one copy sign and date and you have completed the steps.  Your Information For Court Use Form is now ready.  You take one copy with you to the court office, you take two copies of the Statement of Claim and you take the fees.  The court office will keep the Information For Court Use Form for its own records.  This is for the courts knowledge—what kinds of claims are being filed in the court and then also what kind of court file numbers are provided to your file.  Information For Court Use Form is done.  A brief review of the Rules.  You want to check the Rules of Civil Procedure and the information that we have provided here is mostly in Rules 14.01(1), 14.02 and 14.03.

Hopefully this gives you a very clear understanding of how you complete this Information For Court Use Form. It’s not complicated as long as you know the answers to the question that I just talked about.  You can complete it easily.  Hopefully this helps you understand this first step in commencing a court action.  In the next lecture we will talk about how you draft a statement of claim and what is a statement of claim about.  It will help you understand that concept so you can understand Step 2 of the process of commencing a court action.  If you have any questions about what we talked today or generally about the Rules of Civil Procedure or any other legal topic, please contact us.  Put it in comments box on youtube, send us an e-mail or reach out to us through any of these channels and we’ll be happy to add more information in future lectures.

Thank-you for watching.

Starting a Civil Action in Ontario: 3 Basic Steps

Tuesday, June 23rd, 2020

If you wish to start a lawsuit in the Superior Court of Justice in Ontario, you have to undertake specific steps. These steps are governed by the Rules of Civil Procedure. This lecture explains these steps in simple and easy to understand language.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.


Show Notes:


Lecture Slides:

Machine Transcription:

Welcome everyone this is Amer Mushtaq from YouCounsel.

In today’s lecture we will talk about three basic steps that you need to take in order to start / commence your civil court action in Ontario, in the Superior Court of Justice.  We will talk about the very first step in the whole civil action process which is the commencement of your court action.  What is it that you need to do to get inside the court system? We commence always with the disclaimer that this course is not legal advice.  It’s purely for legal knowledge.  If you have any specific questions about your issues you must contact a lawyer or a paralegal.

Step 1: We will explain this process the commencement of the court action with an example.  Let’s say Mary loaned $100,000 to John.  John then refused to pay that money back.  Let’s say he was required to pay that back within a year’s time.  He has not returned that money and Mary is at a stage where she needs the court’s help—she needs to get a court order against John so that she can get her money back.  If that’s the example, what is it that Mary needs to do to enter the court system?  Mary needs to follow a certain process to actually go and eventually tell a judge that John has done this wrong against her and she needs some remedy from the court system.  How does she even enter the court system?—that is the subject of today’s lecture.  (a) First thing Mary needs to understand is that there are basically two legislation that are relevant to her case (there are more or there could be more) but the fundamental ones are the Courts of Justice Act and then underneath the Courts of Justice Act there are regulations called Rules of Civil Procedure.  If you have followed our previous lecture, we have talked about Rules of Civil Procedure in many other lectures.  If you want to learn more about the Rules generally, and listen to those lectures check those lectures out and you will get a better understanding of the framework of these Rules.  For the purpose of today, what you want to understand is that Rules of Civil Procedure provide the mechanism which Mary has to follow to enter into the court system in Ontario and Superior Court of Justice.  That mechanism (those Rules) will guide her all the way to Trial and how she gets a judgment against John.  It is fundamental for Mary to follow these Rules, understand them, abide by them and when the circumstances require to go around those Rules and she has to lawfully do that.  Both the Courts of Justice Act and the Rules of Civil Procedure are available online for free.  All you have to do is type into Google “Rules of Civil Procedure, Ontario” and you will find those Rules.  (b) What are the steps that Mary needs to undertake to even start the court action?  She has to fill out certain forms.  Form 1 that she has to fill out is called the Information for Court Use form.  Second document that she has to prepare is called the Statement of Claim. There’s also a form for that. The third thing she has to do is, she has to provide the court with certain fees for the court to allow the commencement of her court action.  Those are simply the three basic steps that Mary needs to do and then her court action will commence.  She will get the Information for Court Use form fill that out; then she will prepare her Statement of Claim.  A Statement of Claim basically is a document in which Mary is putting her story—her version of the facts in writing telling the court what remedy she wants and why does she want it.  It’s as simple as that.  What is it that she wants the court to do in this case?  She wants the court to award $100,000 against John—that is what she wants.  Then obviously she wants her costs because she is incurring some cost to get all the way through the trial and so she will ask the court for those costs.  She may ask the court for interest on the payment—from the time that it was due.  That’s what she wants. She wants from the court judgment against John and why does she want it? She has her own story and her story will be that “on such and such date I gave a loan of this money to John.  John was supposed to return it on so and so date.  He has refused to do.”  We will in a separate lecture talk about filling out of the Information for Court Use form and the Statement of Claim.  In this lecture we are basically telling you the three steps and then will go over each step separately at least the first two steps, the third part is rather easy.

The question will arise that where do you find these court forms?  The answer is they are also available online.  You type in “Rules of Civil Procedure forms” in Google and you will see that the Ontario Government has made these forms available online. All of the forms that relate to the Rules of Civil Procedure are here on this website.  You can click on the word format and you will have that document open.  You can fill it out as you need to. What about the fees? Where do you find the fees? Again you go back to Google and you type in “court fees, Ontario”.  You will see this—Regulation (O. Reg. 293/92) Superior Court of Justice and Court of Appeal Fees.  In this Regulation the government has laid out what are the fees for what.  Stop.  When you scroll down and read:

Section 1. The following fees are payable, except in respect of proceedings to which section 1.2 applies:

      1.  On the issue of the following:

             (i) A statement of claim, notice of action or notice of application, $220.

Essentially, if Mary is commencing a court action which is through a statement of claim or through a notice of action, then she will be paying the court $220.  She can take a money order, I believe she can pay by Interac or by credit card at the court office.  Mary has to go physically to the court office depending upon which municipality she lives in.  If it’s in Toronto, then she goes to 393 University Avenue on the 10th floor, lines up, carries one copy of the Information for Court Use Forms; carries two copies of the statement of claim that she has printed and then provides that money (fees).  What the court will do is they will keep the Information for Court Use form in the court system. They will issue a court file number for her statement of claim.  The Registrar at the window will actually physically write down the court file number on the Statement of Claim, put a stamp on the face of the statement of claim (on the very first page is a red color stamp), sign the statement of claim and then enter a date of the issuance of the claim.  Those are the four things that the registrar will do: entering in the system, put a stamp, give the court file number and sign it.  It takes five steps—and hands back the statement of claim, which is now issued from the court, to Mary.  Mary has to take certain steps: she has to go and serve that statement of claim on John.  At this point once the statement of claim is stamped and issued, has a court file number, signed by the registrar and dated—then her claim is issued.  She is now in the court system.

Okay, all of this information that I’ve given you is from the Rules of Civil Procedure.  My role here is to simplify things for you so you don’t need to directly go and decipher it from the Rules but I do want to tell you which Rules I had looked into so you can understand where all of this is coming from. Rules of Civil Procedure is the guiding rule book, the guiding rules.  Then we went through Rule 14 and Rules 14.01(1), 14.02 and 14.03. Let me quickly go through those Rules.  I can briefly tell you what those Rules say but the essence I have already provided that to you.  For Rules of Civil Procedure go to CanLii website.  And then if we scroll down to—we are talking about Rule 14, let’s go to the Table of Contents and scroll down to Commencement of Proceeding—which is the Rule and I have spoken about Rule 14—let us go down to Rule 14 and see what it says.  Rule 14 is titled Originating Process. Originating Process is actually the process when you commence the court action or an application—that is the starting (originating) process that’s what’s called originating process. 

Rule 14.01(1) says, “A proceeding shall be commenced by the issuing of an originating process.”

OK we get that.  If you scroll down, we’re talking about the Commencement of Proceeding by way of a court action.  What you want to know is in Rule 14.02 which says, “Every proceeding in the court shall be by an action…”—there is an action and there’s an application. Those are two different things and we have a separate lecture already available.  You can check that out. It says that” “Every proceeding in the court shall be by an action, except where a statute or these rules provide otherwise.”  And that’s where our other lecture explains what an application is.  Scrolling down you see that you can start a court action by statement of claim or notice of action  What I’m emphasizing or I’m advising you today is about commencing a court action through a statement of claim.  But you can also, and this is provided in 14.03. If you scroll down it tells you what a notice of action is.  You commence a proceeding with a notice of action only when there is insufficient time to prepare a full statement of claim and you’re in a time crunch.  You want to get to the court and file your notice of action. You file a very brief story, commence a notice of action and then within 30 days you have to prepare a statement of claim and serve it.  If you scroll down further, it talks about Information for Court Use form.  It actually tells you that Form 14F is the Information for Court Use form and what you have to do with that.

Those are the Rules for your learning.  If you want to read them in more detail, I have provided you with the link. The basic concept—that you have 3 steps to follow.  1. Prepare the Information for Court Use form; 2. Prepare two copies of the Statement of Claim.  Carry all these things along with 3. $220 (either in money order or you can pay by credit card or interac at the court office) and hand over to the Registrar.  The Registrar will review it briefly to make sure that the formality of those documents is correct.  The Registrar is not going to read the contents.  The main thing the Registrar will look at is to make sure that the case belongs to Ontario—you don’t live in British Columbia and John doesn’t live in British Columbia or elsewhere.  The facts of the case, i.e., the issues that are in dispute, really relate to Ontario.  That’s the main thing—that is the main concern.  If it does relate to Ontario, then you’re good to go.  The registrar will put a stamp, add a court file number, sign it put a date and give you back one copy and keep a copy of the claim and the Information for Court Use form for the courts own system.

Hopefully, this explains to you the very, very first step—this is how you actually get into the court system and Superior Court of Justice.  We will take further steps and explain the next process.  We will soon have a lecture on and how to fill out the Information for Court Use form, what is that for, what is the form about, etc. Similarly, we will have a lecture on drafting a statement of claim. 

If you have any questions about what we have discussed today please contact us.  Put your comments on YouTube.  They are very helpful.  Send us an email or contact us in the ways that are listed here.  We will be happy to add more information in future lectures. Thank-you for watching.

Civil Action in Ontario – 6 Basic Steps

Tuesday, June 16th, 2020

This lecture explains basic steps in a Civil Action in Ontario. The lecture is designed for everyday people who have no legal background.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.


Show Notes:


Lecture Slides:

Machine Transcription:

Welcome everyone this is Amer Mushtaq from YouCounsel.  

Today we will talk about Civil Actions in Ontario.  These are court actions that you commence in the Superior Court of Justice in Ontario.  We will talk about 6 basic steps that are commonly taken in the proceedings of these civil actions.  The lecture is really designed for people who have no legal background—so they can understand the fundamental steps in a civil action in Ontario.  As always we will commence with a disclaimer that this course is not legal advice.  If you have any specific questions about your issues, you must contact a lawyer or a paralegal.

Civil actions in Ontario are governed by specific legislation.  There are two legislations that you want to keep in mind—those are your starting point.  If you are going to research the procedure for a civil action in Ontario the larger legislation is the Courts of Justice Act and underneath that are the Rules of Civil Procedure.  These are regulations under the Court of Justice Act.  Both these legislations are available online.  You can go on Google and type in Rules of Civil Procedure.  CanLii is one website but they’re also available on the government website and you can check those out. I want to show you a few things about the Rules of Civil Procedure so you can understand the layout a bit better.  Let’s scroll down to the Table of Content.  You will notice that there are a total of 77 Rules.  Each Rule has a number of sections.  There are a lot of sections.  In other words, there are a lot of Rules that you need to keep in mind depending upon the circumstances of your court action.  The way these Rules are laid out: they are in different parts or you may call them chapters and they start from: General Matters; Parties and Joinder; Commencement of Proceeding so on and so forth. What I want you to pay attention at this stage is that unfortunately the Rules are not laid out in a way that a person who is not a lawyer or a paralegal can easily decipher.  What I mean by this, is that if you want to understand what is the process, what are the steps to commence a court action, it doesn’t lay out the Rules in that manner.  You don’t see here Chapter 1: Commencement of court action and then you have to take the following steps. It is laid out in somewhat of a sequential manner but not necessarily for people with no legal background in mind.  What I’ve done in this lecture is to summarize some of the Rules, taken them out of their sequence in the Rules and then will explain to you the process.  Each section, each step that I’ll be talking about it may be referring to a different chapter but the overall concept is that you have an overview of how these court actions are commenced and how these court actions are concluded in a civil action in Ontario.

Let’s begin with the 6 StepsStep 1: is obviously Pleadings; I’ll explain what that is.  Step 2: is Affidavit of Documents; Step 3: is Discovery process; Step 4: is Mediation; Step 5: is the Pretrial—and the last and the final—Step 6: is the Trial.

Step1:  What are Pleadings?  Pleadings are the documents in which each party lays out their version of facts about the issue.  A party that commences a court action, will start their court action by filing and serving a document which is called a Statement of Claim.  A statement of claim essentially is, if you are the claimant, if you are the plaintiff, if you are the party who is commencing this court action.  Statement of Claim has 2 components.  1st component: What is it that you are asking the court to do for you? Are you asking for money? Are you asking for return of property? What is it that you want the court to do?  The 2nd component: is what are the facts that you are relying on? What is your story? Why the court should give you what you’re asking? Those two elements are the fundamental elements of a Statement of Claim: what is it you’re asking and why are you asking this; what is your story. In response the defendant will serve and file what’s called a Statement of Defence and this Statement of Defence will contain the defendant’s story: what they are asking the court to do?  Are they asking the court to dismiss the plaintiff’s claim; to throw it out; to reject it and what is their version of the story; why do they believe that the court should not award the plaintiff (the claimant) what he or she is asking for.  There are different kinds of pleadings. In some circumstances the plaintiff may again file a Reply to the Statement of Defence.  There are specific circumstances in which your Reply can be filed and must be filed.  When we get to each element of the pleadings in different lectures I will explain to you when a Reply is served and filed.  Pleadings are also counterclaims.  If the defendant has a claim against the plaintiff, then the defendant can issue what’s called a counterclaim and explain or ask the court what is it that they want the court to award against the plaintiff.  One more kind of pleading is Third Party Claim.  In this situation if a claimant or a plaintiff has sued the defendant and defendant believes that it’s not them who are responsible for those monies or for those damages but it’s a third party who should pay for those damages because they are the ones responsible and they want to bring that third party into that court action, then they will bring what’s called a Third Party Claim.  That’s how the third party claim will be issued.  Pleadings is really the first step in which all the parties are laying out their position/their facts for the court, for the judge.  They are explaining their side of the story.  Pleadings are very brief—the facts—only the facts are relied on.  There’s no evidence that is provided at this stage.

Step 2: is the Affidavit of Documents—which is really the evidentiary part of your court action. Through the Affidavit of Documents each party provides whatever evidence they have in relation to the Claim. If you are the claimant (if you are the plaintiff) and you have certain evidence (certain documents) that you need to rely on, then you must provide copies of those documents to the Defendant.  This is an important point to understand.  There’s something called a Trial By Ambush. And Trial By Ambush—what that means is that one party does not know what is the evidence against them.  All of a sudden the other party shows up with that evidence at the eve of Trial or during the Trial and then it destroys the other party’s case.  Then they can walk out free.  Most of the time you see these kind of tactics in criminal cases where this is allowed for the defendant. So if you watch Law and Order or similar cases you can see that at some point the accused walks in or accused lawyer walks in with the witness who nobody knew about—who that person was or walks in with a piece of evidence that is so damaging that it can destroy the Crown’s case (the prosecutor’s case).  That’s okay in criminal cases but in civil cases there is no Trial By Ambush in Canada or any part of the common law world.  What this means is that each party is entitled to know exactly what evidence the other party has against them and has the opportunity to review that evidence, to inspect that much before Trial.  There’s no surprise attack in Trials (in civil cases).  I want to explain that document is a very expansive term.  These are not just paper documents.  Documents include every single tangible piece of evidence that may exist.  These could be electronic documents, e-mails, text messages, cell phone records, meta data for your documents, photographs, videos, audio recordings and paper documents.  Every imaginable thing that is tangible is a document.  If it’s relevant it needs to be produced for that court action.  Document is defined in the Rules of Civil Procedure Section 1.03(1) provides or contains a definition of documents which I have explained to you.  Each party on completion of the pleadings, has to serve the other party with copies of their Affidavit of Documents which contain all the evidence that they have against the other party.

Step 3: The next step is the Discovery process.  Once the Affidavit of Documents are exchanged, each party is allowed to see if there is any further evidence that the other side has in its possession and they do that through the process called the Discovery process.  You are discovering more evidence from the other side.  One way it is done is through Examinations for Discovery and Discovery is also defined in section 1.03(1) said one of the Rules of Civil Procedure.  Examinations for Discovery is when you call upon the other party to attend Examinations for Discovery.  You are sitting in front of a court reporter. The court reporter records all of the questions that you ask.  Their audio recordings are transcribed in writing.  The other party has to respond to the questions that you’re asking.  The questions are really to explore if there is any more evidence that you need to figure out that the other side may have.  Sometimes when you review the other side’s Affidavit of Documents you may realize that the documents are referring to a meeting and there are no Minutes of that meeting provided to you.  You may want to explore whether there were such Minutes of the meeting; whether those meetings/those minutes are discoverable or not.  There could be additional witnesses that you may discover through the discovery process and you want to make sure that those witnesses attend a Trial.  Discovery process is really an opportunity for each party to explore whether there is more evidence that needs to be presented; that needs to be obtained prior to Trial because remember when the Trial begins then you don’t have or rarely have an opportunity to adjourn the Trial on the basis that you have discovered new evidence that is not available at this time and you need to adjourn your Trial, go get that evidence and then come back when the Trial begins. Usually you are expected to have done your homework, produce all of the evidence that you need and then proceed with the Trial up to its completion.  That is why the Discovery process is generally, the most important step in a civil action.

Step 4: Once the Discovery process is complete or even sometimes before the Discovery process is done, the Parties go to Mediation to see if the matter could be settled.  Now depending upon in which region, which part, and which municipality your case is, if your court action is in Ontario, you may have mandatory Mediation.  In some you don’t have mandatory Mediation.  In Toronto the Mediation is mandatory for all court actions.  What this mean is that both parties or all of the parties have to agree to a mediator who has to attend a Mediation session and explore whether this court action could be settled without going to Trial.  I can tell you from experience in employment law cases that the majority of wrongful dismissal cases over 90 to 95 percent of the wrongful dismissal cases get settled at Mediation stage and don’t even go to Trial.  If you want to know whether the Mediation is mandatory in your specific region you must check the Rules of Civil Procedure and Practice Directions to figure out whether you are required to attend a Mediation.  If you’re not required to attend a mandatory Mediation, you may still want to explore with the other side whether it’s a good idea to go and attend Mediation. 

Step 5: If the matter doesn’t settle at Mediation, you can proceed to Pretrial.  Pretrial is really another attempt—now in front of a judge to see if this matter could be settled.  When a pretrial is arranged; it’s now arranged in front of a Master or a Judge.  The judge will first of all try to see if the parties are willing to resolve that matter.  The judge will try to help those parties to come to a resolution.  If the parties are still not able to resolve their case, then the judge will try to narrow down the issues for Trial, so that the Trial judge knows what are the legal issues that he/she has to decide at Trial.  Finally the judge will figure out how many witnesses each side has; how many days it will take to complete the Trial and then schedule the Trial dates.

Step 6:  Final step is the Trial.  This is the step where you are presenting your case with all of its evidence either before a judge or in front of a jury and the judge or the jury will ultimately decide who wins the case and who loses.  At the end of the Trial there are always winners and there are always people who lose and if you don’t want to be in that position then you really want to explore prior to the Trial whether this matter could be settled.

Few things that you want to keep in mind is that if you are in a court action or you want to commence a court action or you’re defending a court action in Ontario, you want to read the Rules of Civil Procedure and the Practice Direction to understand what steps you have to take.  You also want to keep in mind that for each step, for each document that you have to file or serve there are forms for that step.  Those forms are also available online.  You can go to Google and type in Rules of Civil Procedure forms and all these forms are available online. You will notice that these forms are numbered.  The way they are numbered is usually if it’s, let’s see, this is the number 4A, it is titled General Heading of Documents-Actions.  4A—this document relates to Rule 4 of the Rules of Civil Procedure.  If you scroll down, there are all these documents that are numbered and they are related to the specific rule that they are referring to.  You can find these documents. You can open them in Microsoft Word or in pdf.  You can complete those documents and these are the ones that you file. You want to remember that even though you may have commenced a court action or you are defending a court action, the court action can be settled at any time.  You may have been served with a Statement of Claim and you believe that the matter could be settled by talking to the plaintiff or to the applicant or to the pleading party, then you can have that resolution.  You can go to a Mediation.  You can have a third party help you with the settlement and you can settle it.  There are cases that settle at the eve of Trial, there are cases that settle during Trial—as long as the Trial is not completed you have that opportunity (even sometimes before the judgment) you can actually settle the case and then allow the court to dismiss the court action without getting a judgment.  Settlement can occur at any time at any stage.  It really requires all parties to agree to a settlement and then settle the case.  Last thing I want you to keep in mind is that there are the legal costs.  There was a study that came out a few years ago in Toronto which indicated that a three-day Trial in Toronto from the time it is commenced (from the Statement of Claim) to the time the Trial is completed costs upward of $50,000.  Those are the legal costs that are present in our system which are quite high and it’s one of the factors that you want to keep in mind when you are deciding—when you’re taking your case all the way to Trial—whether in a cost benefit analysis it makes sense to fight the case all the way to Trial and not ignore that the resolution through Trial takes a long time.  The courts are overwhelmed by so many civil cases that it takes quite some time to get to Trial stage.

Hopefully this lecture explains to you the basic steps of a civil action in Ontario.  What we will do in the future lectures—we will cover some of the important Rules in each lecture, explain their application, explain what do they mean, how do you apply those rules in your own circumstances and then as we move forward we’ll try to decipher/unravel the mysteries of Rules of Civil Procedure.  If you have any questions, please contact us, send us an email or post your comments and we’ll be happy to address those.  If there are any specific Rules of our questions relating to any specific Rules that you may have in your mind, by all means contact us and we’ll keep adding those in our future lectures. 

Thank-you for watching.

Job Postings, Interviews and Employment Offers – Basic Legal Overview

Monday, June 15th, 2020

This lecture explains most common legal issues with job postings, interview, and employment offers. Once an employee or a potential employee understands this basic framework, they can better protect their rights without compromising the chances of finding a job.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.


Show Notes:


Lecture Slides:

Machine Transcription:

Welcome everyone this is Amer Mushtaq from You Counsel.

Today we’ll talk about the process of going through job postings, attending job interviews and then receiving employment offers.  The idea is that you understand some of the basic legal concepts to help you understand the process, understand your rights and then appropriately deal with circumstances as they may arise.  We start always with our Disclaimer that this course is not legal advice.  If you have any specific questions you must contact a lawyer or a paralegal.

First thing you want to keep in mind is that whatever employment you obtain in Ontario or elsewhere, in Canada, there is a certain legislative framework that surrounds that employment relationship.  What I want you to remember is there are five basic legislation that, will impact or relate to your employment relationship, at one time or another.  These legislation are (1) The Canadian Human Rights Act.  This is a Federal Act for employees or for employers who are federally incorporated.  If you work for a federal employer, then the Canadian Human Rights Act will apply to your circumstances.  (2)  If you are an Ontario employee then the Ontario Human Rights Code will apply.  If you are an employee elsewhere in another province or territory then the human rights legislation for that province or territory will apply. (3) If you are a non-unionized employee in Ontario then the Employment Standards Act is another legislation that contains a number of rights that you’re entitled to and those are specified in Employment Standards Act.  4. Canada Labor Code is again federal legislation for employees who are employed with a federally regulated company and finally 5. The Labor Relations Act is for Ontario employees who are unionized.

In addition to the legislative framework you must understand the policy framework.  Legislation comes on top and then, there are specific policies that may apply in your specific employment circumstances. (a) If you are a unionized employee, then unionized employees have collective agreements.  These are contracts between the union and the employer which have very detailed clauses about what an employee can do, what are the hours, how do they get benefits, how do they get to scheduling—all those kind of things are specified in collective agreements.  That applies to unionized employees only.  If you are a unionized employee, then you must go through your collective agreement and understand it.  If you are not a unionized employee, then it’s not relevant to you. (b) The second important policy that you want to look at is the employers’ workplace policies.  When you sign up or you join a company, you’re often given an employee handbook, a workplace policies are given a website that contains all those policies and it’s a good idea always, always to review all those policies in detail because those policies govern your conduct, your rights, your obligations in relation to your employer.  You must understand those. I think also if you are with that employer for a while, let’s say for a few years, it’s always a good idea to review those policies from time to time to see if there are any changes and keep those policies in mind because these policies are always very important. (c) The third policy framework is industry specific practices.  What I mean by that is, if there are no direct workplace policies that the employer may use to deal with an issue, then, there may be certain industry practices that they need to follow.  An example could be, for instance, if you’re in automotive sales.  In automotive sales if there is a process of how the regions are specified or how the commissions are paid and at what time and how are the invoices done and what not, there may be some well-known industry practices that many companies follow.  So absent any employer workplace policies, then you can rely on industry specific practices.  Then, if there is a dispute, you can bring this to a judge and the judge will take industry practices into consideration.  A legislative framework is more important than the policy framework that you must keep in mind.

Let’s jump to the job postings.  Job postings are usually pretty straightforward to use.  You see them in Workopolis, Indeed and in the newspapers.  They specify what is it that an employer is looking for in a candidate in terms of experience, in terms of qualification and what not.  But there are few things that you must keep in mind when you’re reviewing job postings.  A job posting must not be discriminatory—in the sense that they should allow everybody/everyone regardless of their gender, race, ethnicity or origin—as long as the person is qualified and is allowed legally to work, it should provide equal opportunity for whoever is applying.  You will notice from many job postings that job postings say “so and so employer is an equal opportunity employer”.  They’re taking it a step further to ensure that you understand that the posting is for everyone to apply and there is no preference over one person or another on the basis of the Human Rights Code.  The preference could be based obviously upon the qualifications but not based upon factors that are discriminatory.  Non-discriminatory criteria is, often, laid out.  If it’s not, it’s implicit and if you notice anything in a job posting that states otherwise, then that’s a cause of concern.  In some circumstances there may be discriminatory criteria that is actually allowed in law.  An example could be if there is a disability clinic that provides services to people who are disabled.  If they decide to hire specifically people with disabilities, then, that may be a situation where discriminatory criteria may be permitted.  But generally speaking the criteria for job postings must be nondiscriminatory.

Pay equity is another issue which is quite significant and is still not resolved in Canada and in a lot of other countries. Pay equity is something to keep in mind.  There’s a legislation called Pay Equity Act.   But that is very specific to, I believe, federal or provincial employers.  I believe only federal.  What you must understand is that it doesn’t apply to private employers.  So you want to understand what is the concept of pay equity? Is it is obvious in the job postings that they are treating everyone equally regardless of their gender with respect to remuneration? Or are there different criteria for that?  These are some of the things to look at in the job postings—obviously in addition to whether you are a correct fit for the criteria of qualifications and expertise that is being sought. 

Let’s say you apply for the job position, you get an interview and now you are attending the interview. There are obviously questions that employers will ask that will confirm your qualifications and your experience.  They will review your resume, will talk about your past experiences, but at times the employer may ask inappropriate questions—or questions that are discriminatory.  Questions, that relate to issues that are prohibited under the Human Rights Code.  The employer is trying to get a sense of that primarily for its’ own benefit.  I can give you an example and that may explain it better.  A lot of young women have these issues and we get these complaints all the time and we file human rights complaints for that.  An employer is trying to gauge whether this particular female employee does she have young children; is she planning to have young children—because if a woman is planning to have children, then she may apply for parental or maternity leave and may be away from employment for about ten months or a year or so.  Employers may not be very comfortable in accommodating that kind of situation so oftentimes they try to figure those things out even before they hire the employee so that they’re not in a position to accommodate that person.  A discriminatory practice—which happens quite commonly. Then there are very subtle ways that the employer will go around asking those questions.  Obviously, the simple question could be: are you married? do you have kids? and what not?  Those are obviously very discriminatory questions but some of the ways the employer goes around those questions is by asking: “hey, what do you do in the evenings? how do you socialize? how do you spend time? etc—trying to figure out from your replies as to whether you have a long term relationship; whether you have any children or not; because if you’re hanging out with your friends every evening or on the weekends then you may not be in a relationship where you have children.  All those kind of questions are inappropriate and so we often get this question that how do you handle those kind of inappropriate questions.  It’s a tricky thing.  You can obviously call on the employer and say, “This question is inappropriate/ I am not comfortable answering that.  But then the challenge is that if you still want the job, then how do you handle the question without actually not responding to the question but still being tactful.  The answer is really that you look at the circumstances.  You think about whether this is the kind of employer you want to work for.  If the employer is showing signs of discrimination right at the outset, (even in the interview process) do you want to have a long term relationship with that employer?  Having said that, if you still want the employment then obviously, you deal with it tactfully. You do not give away answers that may lead them to believe one way or another—you don’t need to lie about it but you can still be tactful; you can be a little bit evasive in terms of those questions and then the employer may get the message to back off.  There are ways to handle those questions and obviously you have the option of saying that you’re not comfortable and then just do not answer those questions.

One more thing in the modern world that I want to sort of raise with you is that: yes, the employer can ask these questions and often do ask inappropriate questions at the interview stage.  With modern technology with all social media websites, a lot of employers are not even getting to the stage where they need to figure this out.  They’ll just simply go to your Facebook or your Linked In or other social media accounts.  You know most people have their lives on those social media websites and it’s very easy to figure out someone’s relationship status or children and whatnot.  These decisions about the selection of who gets to the interview may take place even before the employer calls you for an interview by just simply going through your social media. It is absolutely very, very common for an employer to go through social media websites of potential candidates. It has become, in fact, a routine practice for employers to do that.  If you’re looking for a job, if you want a certain career, you have to be watchful of what you put on social media websites because they absolutely have an impact.  You can use those social media websites to have a positive impact on your job or they can diminish your chances of seeking employment—even though you may have excellent credentials.  This is something to be careful about in terms of social media context.

In terms of remedies, if you are asked an inappropriate question and by that I mean a question that’s discriminatory something about your age, your marital status, your sexual preference—all of these things, including your ethnicity, religion—are prohibited in an interview.  But if an employer does ask you those questions, then you have in addition to saying that you’re not comfortable in asking those questions, you actually have the ability to file a complaint with the Human Rights Tribunals or Human Rights Commission—depending upon whether you’re in Ontario or in a federal jurisdiction or in another province—for discrimination and you can get remedies through that process.  That is something to keep in mind or you can commence court actions or you can seek legal advice and then proceed accordingly.  But you know if you’re really looking for a job and you want to work for that employer then you may have to be tactful to get into the workplace and getting the job there. 

Let’s say you pass through the interview process.  Now you have a job offer in your hand.  The single most important thing that you want to keep in mind when you look at that job offer is the termination clause—not your salary, not your hours but the termination clause.  That’s the single most important thing because we have spoken about this in a separate lecture.  You can go through our channel and there’s a whole lecture about contracts and the termination clauses.  So I’m not going to repeat that here. But this is the single most important thing—because in your lifetime in this day and age you will go through a number of employments.  You will be let go from employments regardless of how good an employee you are—just because of the economics of it.  And then the termination clauses will be triggered—which will decide what benefits/what rights do you have on termination.  You could have significant rights on termination if the termination clause is not in your contract or if it’s drafted in a way that it benefits you most.  So that’s the single most important thing.  Second most important thing is the clause about restrictive covenants.  This is again included in a separate lecture.  But restrictive covenants are the things that you’re not allowed to do even after your employment has ended.  Those restrictive covenants control your actions even after your employment has ended.  You want to make sure that you understand those clauses and you’re comfortable, you’re agreeable with those because even when you end the employment, you’re no longer with the company and you still are not able to do certain things, so it’s important for you to know what are those things.

One thing that I want to keep in mind is that once you sign the contract, once you sign on that dotted line and you give it back to the employer then you have a binding contract.  You are bound by it so that the start date may be a week from now, you know a month from now but the contract the moment you have signed you’re bound by it.  That is why it’s important that if you are unsure about any clauses, if you’re not clear about anything, you want to talk to an employment lawyer or anyone anybody else to understand that prior to signing it.  Once you sign it you’re bound by that contract.  Secondly, oftentimes we are posed with this question that: look, I signed a contract and now I have another job offer, can I just leave that one.  I haven’t started there and then go and join another company.  Well, the answer is yes.  You can go join another company but you are actually in breach of the first contract.  Most employers won’t care.  Some employers may and they will come after you for the breach of contract and then they may seek damages so be mindful of that.  We have done cases converse to it.  In one situation, we had a pharmacy manager who came to us who had applied for a job in another pharmacy, got the job, signed the contract, the start date was a month from then and then he resigned from his existing position and then at some point in between that time after he resigned and before he began employment at the next place, the new employer contacted him and said they were rescinding the offer.  So he approached us and we said no, it’s a breach of contract.  They cannot just simply rescind an offer—because it’s a binding contract.  So we had to sue that employer and seek damages.  Signing the contract, the act of signing, is important.  Once you sign it then you’re bound by those terms.

Hopefully this was beneficial in terms of the hiring process and job postings.  It gives you some sense of what your legal rights are.  If you have any questions or if you have any specific topics that you want us to cover, by all means contact us and we’ll cover those in our future lectures.  Thank you for watching.