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Welcome everyone this is Amer Mushtaq from YouCounsel.

Today we’ll talk about workplace bullying and harassment in Ontario.  If you have any understanding of what’s going on in workplaces you would notice that workplace harassment and bullying is on the rise.  There are many reasons for this.  Some of the reasons are: (1) we’re spending increasingly more time at workplaces—even more time than what we spend with our families and friends. By virtue of spending more time at work, it is bound to happen that there will be frictions between employees and coworkers and that gives rise to all kinds of issues including bullying and harassment. (2)  Workplaces are getting more stressful.  There are more demands from the employers.  Nature of economy is changing, which is adding another layer of stress on employees.  Finally, (3) In the workplace employees are often put in competition with each other and that naturally gives rise to friction and all kinds of issues which can emerge in the form of bullying and harassment. 

Today’s course is about workplace bullying and harassment.  The fundamental things that we will discuss will explain what workplace bullying and harassment actually means so that you can understand and can apply it in your circumstances.  (I) You will know whether you are experiencing workplace bullying and harassment within its legal definition in Ontario.   (II) Secondly, it will provide some basic steps that you want to undertake in order to prevent workplace bullying and harassment against you; or, (III) if you are experiencing bullying and harassment, then what kind of remedies you can get through that process.  Let’s get right into it.  Our usual disclaimer comes first, that this course is not legal advice.  If you have any specific questions, you must contact a lawyer or a paralegal.

Let’s talk about workplace harassment.  The first question that should come to your mind is: what you are experiencing is that workplace harassment or bullying or not?  Go to Google and then you type in a legislation called “Occupational Health and Safety Act”.  It’s available on Canlii.  Click on that. This is an Ontario legislation that deals with all kinds of health and safety matters including, workplace bullying and harassment.  This is the Act that you can review at your own leisure.  Let’s get into workplace harassment and see if we can find a definition. Here we have.  This is in Section 1.  It is called the definition section.  Workplace harassment is defined here. I want to go through this slowly with you because we’re talking about the definition and I want you to really, clearly understand it.  Workplace harassment means “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome”.  If you carefully read this over and over again you will get the theme out of this specific definition.  The definition of workplace harassment is extremely broad.  There’s a good reason to keep it so broad because the kind of circumstances that can be defined or can be explained as harassment are so various and are so significant/so diverse that a narrow definition would be too restrictive.  It would not cover all of the scenarios.  For instance if the legislators have put in sarcasm, bad jokes, inappropriate language—is harassment then that would have been too narrow.  Remember it says vexatious comment or conduct.  The conduct or comment has to be vexatious.  Vexatious is a very broad word with so many different interpretations.  That conduct has to happen against a worker in a workplace and then that is known or ought reasonably to be known to be unwelcome.  Either the person who is bullying or harassing the other person—either the person knows or reasonably to be known—meaning that when people look at that situation objectively and they look at that conduct, they will come to the conclusion that yes, this was a vexatious comment or conduct.  It would come under the definition of workplace harassment.  What is the key message here?  It is that workplace harassment, by definition in law, is a very, very broad definition.  It can cover a variety of circumstances.  That’s something to keep in mind.  If you scroll down, I want to show you two other things: (1) workplace sexual harassment it has a separate definition (separate meaning) and you can review it; and then (2) workplace violence is a separate category and it has a separate definition.  We’re not covering all of those today.

We’re focusing on workplace harassment.  What you want to remember is that there is legislation in Ontario that deals with workplace harassment which is called the Occupational Health and Safety Act.   We just looked at that and the definition of workplace harassment is in Section 1(1).  You also may have noticed that there was no word bullying in that Occupational Health and Safety Act.  Primarily, because the definition of harassment is so broad that it will include bullying anyways and so bullying is not separately defined but workplace harassment as it’s defined in the Occupational Health and Safety Act does include all kinds of bullying. Let’s go through some examples and these are very, very few examples.  There are so many circumstances where because of that definition you can find the conduct to be vexatious enough and to fall under the category of workplace harassment.  Let’s look at some of the examples: insulting language, inappropriate language, name calling, swearing.  These are some of the obvious simple examples of workplace harassment. Jokes, embarrassing jokes, hurtful jokes, humiliating jokes about a coworker either in his or her presence or not, could constitute workplace harassment.  Gestures, body language—this happens quite often and we get a lot of complaints where the person who is bullying or harassing is not actually saying anything verbally but his or her gestures and body language is so inappropriate that it can amount to workplace harassment.  I’ll give an example of this.  It was from one of our cases that we dealt with, where this particular employee would sit in an open office environment.  The supervisor/the manager will come in and she will say good morning or hello to each one of them while specifically ignoring this person.  This happened on a daily basis.  If you experience that kind of behavior every morning, every day of the week when you come to work you can imagine what kind of cumulative impact this will have on that person.  That kind of behavior would constitute harassing behavior.  Similarly, physical touching (any inappropriate physical touching) which is unwelcome can amount to workplace harassment and can amount to sexual harassment as well. You want to look at both definitions.

Another important thing that you want to notice is interference in work.  I want you to understand this a bit more interference in work there are the 2 kinds of interference that a manager or supervisor can have in your work: (1) one is sort of a constructive interference, i.e., you’re doing something wrong or you need some coaching or you need to be monitored.  Certain times that may be appropriate.  But sometimes the manager or the supervisor is so micromanaging your work or so involved in your work in a way that it almost becomes harassing and its ongoing, it’s constant—it happens all the time and that may amount to harassment.  Another example could be micromanaging (getting too involved), or taking away work from you—if for instance, in a case we dealt with, where the employee who was a managerial employee whose attendance was required in certain meetings but she was completely ignored.  She was not sent meeting invitations, she was ignored at the meetings and where the key decisions were made and what not and that could be a form of harassment too.  Those are the examples of harassment.  At the same time you want to keep in mind that constructive criticism of your work—if you have done something wrong and you are appropriately reprimanded—that is not harassment.  That is management of that work and management of the employee.  Sometimes the line is a bit blurred. You want to look at all of the circumstances of what’s happening.  I don’t think that it is for a decision maker (for a judge for/an arbitrator)—it will be a very hard thing to figure out whether it was harassment or whether it was simply the management style of the supervisor or manager.

Let’s jump into the how do you fight workplace harassment?  If you’re experiencing workplace bullying or harassment: What do you do?  I’m going to talk about that.  I believe there are some 4 concrete steps that you want to take if you’re experiencing workplace harassment are: Step 1: is always—if you’re experiencing workplace harassment—you must seek help for yourself or your physical for your mental health you must seek help.  If you are concerned about your physical safety, to the extent that you need to call the police, you must take that step.  In terms of help—if you need to go see your family doctor, your therapist, your psychologist or psychiatrist you must do that.  There are two advantages of doing that.  A. Number one you’re getting treatment.  You want to feel better.  You want to look after your physical and mental health.  B. Second is that when you go see your doctor and therapist you’re reporting these incidents and they’re getting documented with that specialist / with that therapist.  Further down the line, if you are before an arbitrator or a judge in a court an investigation of those documents—those doctors’ records / those medical records—become part of your evidence.  They may support your case.  If you’re experiencing workplace harassment I think, it’s important to get that documented with your doctor and therapist if you need to seek help.  Do not feel shy or do not feel reluctant in going and seeking help. C.  One more thing you want to explore is—and many, many at least large employers in Ontario and Canada have what’s called, E.A.P. (Employee Assistance Programs) which are help lines, confidential third party help where you can call usually a 1-800 number and if you’re experiencing psychological, physical, mental harassment, workplace harassment and bullying you can contact them.  They have therapists available with whom you can share the information confidentially.  You can get help.  If that’s something that’s available at your workplace, you must take it, you must benefit from it and must take advantage of that.

Step 2:  Document, document , document. I cannot emphasize this point enough.  Why?  Because in majority of the cases, workplace bullying and harassment is verbal (it’s oral).  There are no e-mails or no memos, there are no letters that contain harassing, bullying language, sometimes they do but the majority of the cases all incidences are oral or verbal. If anyone either an investigator or a judge is reviewing this matter it all comes down to “he said /she said” and so you want to make sure that you document whatever you were experiencing contemporaneously—meaning that if it happened to you today you want to go home and document it in detail so that you have a record that you can bring to your investigation; that you can bring to your trial and provide to the decision maker.  The advantages are: (a) number one: you have you not have documented something which was done contemporaneously so there’s some evidence of that.  (b) Number two: when you document something on an ongoing basis it will have more details in it.  Whereas, if you try to document it six months down the line you may not remember the parties who were present; you may not remember exactly what was said; you may not remember what time it was said; what was the circumstances of that comment and whatnot.  Documenting on an ongoing basis, if you feel or you believe that you’re experiencing workplace harassment and bullying is essential.  You must do that to protect yourself. Some of the things that you want to keep in mind are: what, when, where, who – what happened; what was the issue; what was the conduct that you were complaining about; when did it happen; where did it happen; who were all present—whether any witnesses; you want to document that.  If there are any documents that can prove your issue directly or indirectly, you want to keep records of that.  For instance, if workplace harassment took place in a meeting and there were minutes of that meeting that were recorded, you want to get a copy of those minutes and put them in your record because that will at least; even if there are specific comments, harassing comments were not documented—at least it will support your allegation that you were attending so and so meeting and this was said.  There is some sort of indirect evidence that will help you later down the line.  Documenting what you’re experiencing and going through is a very crucial (very important) step that you must do.

Step 3. Review policies.  Often times, when you’re hired at the workplace—when you sign up (you sign the employment contract), you get handed an employee handbook of workplace policies.  They may include anti-harassment policies; antiviolence policies; human rights policies; employee code of conduct, all of these things may be there. You may have looked at them a few years ago and not recently, so you want to get a hold of all of these policies review them again to make sure you understand how your employer’s policies define workplace harassment – workplace bullying.  What kind of conduct is covered in that? Then you want to understand what the process is if you have a complaint because you need to follow that process when launching your complaint.  You want to review those policies just to be current.  In a situation where you work for an employer who doesn’t have any of those policies then that’s a problematic issue.  For an employer, it indicates that the employer has actually not turned its mind towards workplace harassment and antiviolence issues and so that may lead to problems for the employer in dealing with your complaint.  Review policies apprise yourself of how workplace harassment and bullying is defined.  What is the process of filing your complaint? 

Filing a complaint.  Now what and where do you file a complaint? You generally have three avenues of filing complaint.  (i) number one: you file a complaint with the employer; (ii) Number two you can file a complaint with the Ministry of Labor in Ontario; and (iii) number three you can actually go to a lawyer and commence a court action.  If it’s appropriate file a complaint (an application) with the Human Rights Tribunals if your matter is also covered under Human Rights Code. These three avenues are open to you. 

My recommendation is that: (1) the first step you want to do is file a complaint with the employer.  The employer may not be aware of what’s going on or the employer may not know the extent/the nature of harassment that you experience and so you must give employer an opportunity to investigate and to remedy the situation to the extent possible.   That’s an important step that I always recommend that you must do.  (2) Second step you don’t need to exhaust the step number one to the employer you can you to go to Ministry of Labor you can go to the Ministry of Labor directly but my recommendation is to go to employer first.  You can file a complaint with the Ministry of Labor.  The legislation has been strengthening more and more from the time that it was initially brought in 5 to 7 years ago. Ministry of Labor will either appoint its own inspector to come and investigate or will force the employer to hire an external investigator to conduct an investigation.  Either way, the Ministry of Labor will take your complaint and will take certain actions. Then your matter can be investigated; and (3) finally like I said you can go contact a lawyer and commence a court action; if that’s appropriate or file an application with human rights tribunal; if that’s appropriate.

OK I want to quickly talk about investigations so you can understand the concept of investigation.  When you file a complaint with the employer, generally speaking, there are two options that the employer has: (i) employer has either to conduct an internal investigation; or (ii) conduct an external investigation.  An employer will decide which one is appropriate based upon the nature of your complaint, based upon its circumstances.  Internal investigation is as the name implies done by somebody who is internal to the employer—internal to the organization.  Could be an H.R. person, could be a senior manager, could be a vice president, and could be any of those people who may be appropriate and who are qualified, who have competence to conduct an unbiased investigation.  Sometimes that internal investigation is not appropriate.  For instance if your complaint is about bullying and harassment against the Director of Human Resources, then anyone from human resources is not an appropriate person to conduct an investigation because of the potential conflict because of the potential bias.  There may be circumstances based upon the nature of your complaint, based upon who you have complained against that it is appropriate to conduct an external investigation and if you believe that your circumstances are such that employers should conduct an external investigation (hire third party) to conduct investigation, then, you must ask for it at least in writing.  If the employer chooses not to act upon it that’s their prerogative but it may cause harm to the employer for not taking care of the issues objectively.  Investigation is important.  A lot of senior lawyers conduct investigations. I do investigations for corporate clients—not my own client; but other lawyers clients because I don’t represent them. I go in as an investigator to conduct workplace investigation and then provide my unbiased findings and recommendations if asked for.

What is the conclusion? My recommendation on workplace bullying and harassment is always, always, always speak up! A lot of employees that we talk to they’re always concerned about fear of losing their job or reprisal at workplace that what if they stand up and make this complaint; what if they lose their job and what if they will face retaliation in other forms.  Reprisal is protected under the Occupation Health and Safety Act—just so you know. But more importantly what you want to understand is that if you don’t speak up, if you don’t stand up, if you don’t file a complaint, then the workplace bullying and harassment doesn’t stop.  It won’t stop against you; it won’t stop against other people and it will only get worse. Then the problem with that is not only that it gets worse but it has huge, huge negative impact on your life.  It impacts your relationships with your family; it impacts your relationship with your friends; it could cause significant damage to your mental health—all of these things accumulate.  They’re very toxic, they’re very negative and you may end up in a situation where if you don’t stand up you don’t speak up, the party who is causing harassment and bullying will continue and create a situation where you walk out of the job and resign not having taken care of your rights.  I think this lecture has given you some understanding of your basic rights and hopefully you will be able to handle the workplace harassment and bullying situation in your workplace better. This is a topic that is sort of growing.  There may be circumstances which are very specific and examples of workplace bullying and harassment that you want us to cover.  We’ll be happy to continue adding on this topic.  If you have any questions by all means please contact us and we will be happy to keep adding on to this topic.  Thanks for watching.

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Welcome everyone this is Amer Mushtaq from YouCounsel.

Today we’ll talk about entitlement to overtime pay in Ontario.  Many employees are unclear about their rights for overtime pay in Ontario. This is a common issue.  We’re going to discuss today some of the essentials regarding overtime pay so you understand the basic concepts and have some clarity on when you are entitled to overtime pay and when you’re not. We’ll begin with the Disclaimer that this course is not legal advice.  If you have any specific questions, you must contact a lawyer or paralegal.

 What is overtime pay? Overtime pay is decided or is governed by the Employment Standards Act 2000 in Ontario and in other provinces there is similar legislation that provides how the overtime pay is regulated in those provinces.  The fundamental concepts (the principles) in this lecture are equally applicable to other provinces but the legislation specific to overtime pay in each province is different. You must check your provinces’ legislation to make sure that you have a clear understanding of the hours and how much wages you are entitled to.

The Employment Standards Act 2000 for Ontario.  The basic concept you want to remember is that if you have worked for more than 44 hours per week, then you will be entitled to overtime pay and that you will be entitled to 1.5 time.  If you were making an hourly wage of $20/hour, then you will be entitled to $30 for that time period.  Another concept you want to understand is that Employment Standards Act 2000 allows for averaging of these hours over two weeks or a longer period.  But there are some specific requirements for that averaging.  It’s not available to employers by default.  I’ll show you a little bit about that specific section of the Employment Standards Act 2000. One final thing you want to keep in mind, is that Employment Standards Act 2000 again allows the employer to provide time in lieu as opposed to money for the overtime hours.  But again, there are specific requirements that must be fulfilled.  This option is not available by default.

Let’s look at Employment Standards Act 2000 and see where this specific section is, that deals with overtime pay.  If you scroll down the Table of Contents; this is the Employment Standards Act 2000.  You can type it up on google and you will find it available online on CanlII.  That is one website and there are other websites where you will find the legislation available.  Part VIII of the Employment Standards Act deals with overtime pay.  Let’s click on that and see what it provides. Section 22(1):

 …an employer shall pay an employee overtime pay of at least one and one-half times his or her regular rate for each hour of work in excess of 44 hours in each work week or, if another threshold is prescribed, that prescribed threshold.

 —what that means as you can see further down below about averaging and time in lieu and whatnot.  Essentially, forty four hours plus per week—if you work that many hours then you’re entitled to time and a half.  I talked about averaging.  This is the Section 22(2) that talks about averaging:

 (2) An employee’s hours of work may be averaged over separate, non-overlapping, contiguous periods of two or more consecutive weeks for the purpose of determining the employee’s entitlement, if any, to overtime pay if,

(a) the employee has made an agreement with the employer that his or her hours of work may be averaged over periods of a specified number of weeks; and

If these are the specific conditions the employee has  made an agreement with the employer that his or her hours of work may be averaged over a period of a specific number of weeks, you as an employee must have that agreement, otherwise the employer cannot average on his or her own.  The employer has received an approval under Section 22 (1) that applies to the employee or a class of employees that includes the employee.  This approval is actually obtained from the direction of the Employment Standards Act and so that needs to be done.  Then it talks about averaging.  These are some of the specific terms.  The key message that you want to keep in mind is that if you work for more than 44 hours then you will be entitled to overtime pay. 

 Here is Subsection (7) that talks about Time in Lieu. 

 Time off in lieu

 (7) The employee may be compensated for overtime hours by receiving one and one-half hours of paid time off work for each hour of overtime worked instead of overtime pay if,

 (a) the employee and the employer agree to do so; and [your agreement is essential]

(b) the paid time off work is taken within three months of the work week in which the overtime was earned or, with the employee’s agreement, within 12 months of that work week. 

 If you’re not agreeing to it, then you must get paid and the pay time off work is taken within three months of the work week in which the overtime was earned or with the employees agreement if you’re agreeing to it within twelve months of that work week [Refer to 7(b)].  There are specific requirements when an employer can offer you time in lieu.  And absent those specific conditions the basic principle is that you’re entitled to time-and-a-half or 44 hours plus work in excess of 44 hours per week. 

Now a question arises which is very, very common and this is a common misunderstanding.  Clients come to us all the time and say that I am NOT entitled to overtime pay because I was a salaried employee.  I was making specific amount of income regardless of the hours so I assume that I’m not entitled to overtime hours.  I’m making $30,000 annually or I’m making $60,000 annually and so my paycheck is quite specific.  It’s not based upon the hours.  I don’t get paid based on $15/hour or $20/hour.  There’s an assumption made by employees that if you are a salaried employee you’re not entitled to overtime pay.  An absolutely incorrect assumption. Please keep in mind that whether you are a salaried employee or whether you are making hourly wages it has no bearing on your entitlement to overtime pay—if you are working for more than 44 hours per week it, does not matter whether you’re a salaried employee or an hourly wage employee, you are entitled to overtime pay.  It’s a very, very common misconception and I think it’s important for you to understand that.

What about low income versus high income? We sometimes get clients who make significantly high income.   Somehow they believe that overtime pay is only for employees who are much Junior, who do not make a lot of money.  I want you to be clear that whether you make $30,000/year or $150,000/year, it actually has no bearing.  It makes no difference in law to your entitlement to overtime pay.  I have had a number of clients who worked in investment banking field, who worked in a non managerial, non-supervisory capacity.  These are young MBAs who worked for investment banking firms.  If you know anything about Investment Banking, the employees there work at least 60/65/70 hours per week.  They are always working more than 44 hours.  There are actually very, very few times that they’re not working that much and yes they get paid a lot of money.  Sometimes their basic salary is $120,000 to $150,000 plus they get bonuses on top of that.  Are they entitled to overtime pay?  As far as the legislation is concerned, as far as the law is concerned as it stands today: absolutely yes.  I have launched a number of court actions in which we claimed overtime pay for these very highly paid individuals because they were not given overtime pay by their employers.  Whether you make low income or high income, it has no bearing on your entitlement to overtime pay.

What about supervisory vs. non-supervisory roles.  This is one factor which has an absolute bearing on whether you are entitled to overtime pay.  This is the factor that makes a difference if you are a supervisory employee.  You are not entitled to overtime pay.  Only non-supervisory employees are entitled to overtime pay.  Where is this principle (this rule) coming from?  It is coming from the Employment Standards Act.  I’ll show you where this exemption is but if you are in a supervisory capacity you are not entitled to overtime pay—but there is a caution here.  You want to keep in mind the difference between the substance and the form.  What do I mean by that? Are you an employee who was actually working in a non-supervisory capacity but just carry a fancy title as a manager? If that’s the case, then you are still entitled to overtime pay.  Your title is not what the court considers it is, it is what you actually do.  I’ll give you an example, I’ve had a number of clients who had worked for pharmacies and they had the title of Manager of Pharmacy but, in essence, they were only spending maybe thirty minutes or less on any managerial work—which was scheduling other people’s schedules for the day or for the week.  For the rest of the time during the day they were stocking merchandise in the shelves, they were receiving merchandise, they were acting as shipper-receiver, they were working as a cashier, they were mopping floors—all of these tasks were non-managerial tasks.  Those were the tasks that they were doing 80% to 90% of the time.  The managerial role was very limited.  For the time that they were working or performing non-managerial tasks, if they had accumulated more than 44 hours per week they were absolutely entitled to overtime pay.  Another example I can give you is: I had a client who was an executive chef at a very high end hotel—which has chains all around the world.  He approached me for some other matter and when I asked him about his hours here (excessively long hours) and I suggested to him that he was entitled to overtime pay.  He rejected that saying that he was an Executive Chef which was a managerial position and he could not have been entitled to overtime pay.  I responded to him that, that was not correct because I had seen, like you, a number of shows on television that show these chefs working and you realize that majority of the time a chef is actually working in the kitchen with his or her hands—preparing stuff, preparing meals and whatnot.  When I delved deeper into his day, I realized that his managerial role was NOT more than 5% of his work.  The rest of the time he was actually preparing meals with his hands which was not considered a managerial task.  So he was entitled to a significant amount of overtime pay.  Consider that if your role has a title that sounds like a supervisory role or a managerial role, it does not matter.  What matters is what is the nature of your duties and if your duties were such that they were considered non-managerial / non-supervisory, then you will still be entitled to overtime pay for that work.

 Let’s get to exemptions now.  As I said everybody who works for 44 hours plus in a week is entitled to overtime pay and then I’m talking about exemptions.  The same Employment Standards Act that say’s that you are entitled to overtime pay also prescribes (also provides) under what circumstances you’re not entitled to overtime pay.  We will talk about Ontario Regulation, 285/1, Section 2; in the same regulation, Section 8; and again in the same Regulation Sections (13) to (18).  Let’s have a quick look at those Regulations and see what we can discern from them.  I open here the entire Regulation.  Just so you know what a Regulation is—Regulations are Rules that are made and are subsidiary to the major legislation.  This Regulation is in the Employment Standards Act.  It’s called O. Reg. 285/1 and let’s go down to the Table of Content and when we go here in Section (2) Exemption, regarding various parts of Act an exemption for Part 7 to 9 of the Act and remember that part 8 is the one that talks about overtime pay.  This specific exemption is 7, 8 and 9.  Who are the people who are exempted from overtime pay?  Let’s click on that and it says Part 7 to 11 of the Act do not apply to a person employed as a duly qualified practitioner of architecture, law, professional engineering, public accounting, surveying, veterinary science, so on and so forth.  There’s an entire list.  Two things to keep in mind that all of these people are exempt.  They’re not entitled to overtime pay, even if they’re working more than 44 hours.  An architect who is working—duly qualified practitioner—which means that, that person is actually a licensed architect.  A lawyer who is working as a lawyer not if a lawyer who’s working as a business manager for a company or as a business you know associate for a company, then he is not working as a qualified practitioner of law.  There is a bit more detail into how you want to read this.  But these are examples of some of the professions where individuals in those professions  are not entitled to overtime pay:  chiropody, chiropractor, dentistry, massage therapy.  A duly registered practitioner under the Drugless Practitioner’s Act, a teacher, a student in training for an occupation in the list, a sales person or broker.  All of these people are not entitled to overtime pay.  That’s one category of people who are not entitled to overtime pay.  It doesn’t end there.

 Let’s look at another category and we go down to Exemption under Overtime Pay, Section 8. And when you read this Section 8 of the Act does not apply to and there are other people: firefighters; and this is the one I was talking about “a person whose work is supervisory or managerial in character [he or she is actually working in that capacity] and who may perform non-supervisory or non-managerial tasks on an irregular or exceptional basis”.  Remember I said that if majority of the time you’re working in non-managerial capacity then you are entitled to overtime pay; but if you are a managerial employee and you are occasionally working in non-managerial capacity in your example you’re not entitled to overtime pay.  Then there are the odd exceptions like a person employed as a fishing or hunting guide, a person employed as a landscape gardener, the one who’s installing swimming pools, and so on and so forth.  There’s a whole list of that.  Information Technology professionals are not entitled to overtime pay.  Why are these people exempt from overtime pay?  I cannot answer that.  Is that justified?  I cannot say that but just so you know that there are a number of exceptions for people who are not entitled to overtime pay and so if you want to be accurate, you may want to check the legislation properly and make sure that you understand who are not entitled to overtime pay.

There’s a third category that I had mentioned, Sections 13 to 18.  Let’s quickly look at that category.  It say’s people who are working in road building, there are certain specific sections that say that they are not entitled to overtime pay.  Hotels, motels, tourist resorts, restaurants and taverns, people who are working in fresh fruit and vegetable processing, sewer and water main construction, local cartage, highway transport—there are further exemptions for people that are not entitled to overtime pay.

What you want to remember—the message that you want to carry—is that you never ever assume that you are not entitled to overtime pay.  You should not assume that. You always keep records of the hours that you work.  You keep those records outside of the office, in your home, on your home computer, so that when you need to prove that you actually worked hours more than 44, you have some record to prove that.  You always want to consult an employment lawyer because there are, as I showed you, so many specific exemptions and how the law is applied in those exemptions, that you may want to make sure that if you don’t understand it clearly yourself, then talk to a lawyer so that you can understand whether you are entitled to overtime pay or not.  I can tell you from experience that the majority of people who come to us have no understanding of when they are entitled to overtime pay or not, or they assume that the employer will be abiding by all the applicable laws and when they are entitled to overtime pay, they will get those. But if you watch the news, if you read the news, you will realize that there are number of class action lawsuits against many major corporations for unpaid overtime pay.  This is something that isn’t uncommon.  Many employers either by ignorance are just by sheer neglect fail to pay overtime pay to their employees. 

If you have any specific questions about this topic or you want some clarification, please add a comment on YouTube or send us an e-mail and we’ll be happy to add further lectures on this topic.  Thank you for watching.

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Welcome everyone.  This is Amer Mushtaq from YouCounsel.

Today we’ll talk about the law of Dismissal for Cause in Canada.  We’ll cover some basic topics so you can understand the fundamentals of this concept.  Essentially, dismissal for cause occurs when an employer believes that an employee has done something wrong and and he or she deserves to be dismissed immediately from employment.  We will begin with the usual Disclaimer that this course is not legal advice.  If you have any specific questions, you must contact a lawyer or paralegal.

What is just cause for dismissal?  It is essentially an employee’s misconduct.  The misconduct is so bad that the employee deserves to be terminated immediately.  When a court is making a decision about whether a particular dismissal was justified as “just cause” or was it a “wrongful dismissal”, the court considers the circumstances in a contextual way.  It’s called the contextual approach.  This is something that you want to keep in mind.   What I mean by that, I will explain with an example.  If an employee was employee for about fifteen years with a stellar record, i.e., no disciplinary issues and one day the employee ends up disobeying his or her supervisor or manager or speaks improperly (in a derogatory manner) or something like that (which is completely out of line with proper employee conduct), does the employer have a right to dismiss the employee for cause?  The employer may think that this one incident is sufficient to dismiss for cause.  But when the court is looking at this conduct, the court is going to look at the entire fifteen years of record to see how the employee behaved in fifteen years, what kind of conduct he had with his managers and other employees and what not and the specific circumstances of this particular incident and then decide whether the decision to terminate him for “cause” was justified or not.  It’s a contextual approach and looks into a variety of circumstances before a decision is made. 

One thing you want to remember about dismissal for cause is thatit is considered the capital punishment of employment law.  In other words, what an employee has done is so bad—is so egregious, so heinous that he deserves the highest punishment.  In employment law, it is dismissal for cause.  These are not sort of small incidents of misconduct, but something that is really, really harmful, something really egregious.  In majority of circumstances, where the employer actually claims dismissal for cause when the cases are tried in court, majority of the time, the court does not find a dismissal for cause—unless the conduct that was alleged was so egregious that it deserved dismissal for cause. 

We’ll talk about it in a bit more detail by giving you some examples.  Let’s get into five things that I have indicated that you may want to keep in mind—(1) what happens to an employee’s rights when he or she is dismissed for cause?  Keep in mind, that when an employee is dismissed for cause there are No termination rights and No post-termination rights.  He or she does not get any termination rights,  termination pay, severance pay—nothing—no severance, no common law reasonable notice that employees without cause termination may be entitled to.  The terminated employee for cause does not get any of those rights.  The employee is not even entitled to employment insurance because it’s a dismissal for cause.  What you want to keep in mind is that (a) there are no post-terminations rights but the pre-termination rights are intact.  What I mean by that, is whatever salary, benefits, commissions, the employee has accrued up to the point of termination, he or she will still be entitled to that. He or she will not be entitled to any rights post-termination. Point number (2) Single incident: what I mean by that is whether a single egregious incidence of misconduct amounts to dismissal for cause? and the answer is yes it could be sufficient.  Going back to our example of the 15 years service employee who conducted himself improperly.  Let’s take that same employee who had a stellar record for fifteen years and then at some point in the present he steals a large amount of money from the employer.  That may be sufficient grounds, despite his or her fifteen year good conduct, to justify dismissal for cause. 

In majority of the cases, when somebody has worked for such a long time and has had no disciplinary issues or had no misconduct issues of that nature, then it’s unlikely that he or she will be found to be an employee deserving of dismissal for cause.  The point that you want to remember is that a single incident can amount to dismissal for cause.  You want to keep that in mind.  Violence at work—a significant violent issue at work may justify a dismissal for cause.  (3) What about infractions that are accumulated?  I want you to understand that there could be a series of incidents. I can quote an example.  For instance ongoing absenteeism or coming late to work or leaving early from work—if this kind of behavior is ongoing for a long time, and an employer has been issuing warnings and the employee has not been heeding all kinds of warnings—all this may cumulatively amount to dismissal for cause.  The employer may be justified—just because the infractions are not too significant but the fact that they have been repeatedly happening and the employee may have been receiving warnings for that, then that may amount to dismissal for cause as well.  (4) What about progressive discipline? And we get this question often when an employee is terminated for cause and he or she comes to us and states that he/she had never received any warnings or any suspensions and therefore the employer is not justified in terminating the employee for cause.  That may not always be the case.  Progressive discipline is not necessarily a prerequisite to termination of cause, it depends on one of these factors: (a) it may depend upon the employer’s workplace policies.   If the employer has workplace policies that require the employer to issue warnings and require the employer to provide progressive disciplining to the employee before terminating him/her, then you may have an argument that progressive discipline was a prerequisite.  Generally speaking, prior warnings or previous suspensions are not required.  It really depends upon the conduct.  The court is looking at the entire context of that conduct to decide whether the dismissal is justified for cause.

Let’s talk about some of the examples of just cause dismissal: (1) stealing or embezzling money from employers, obviously, is an example of where the dismissal for cause would be justified; (2) violence and workplace harassment including sexual harassment of co-workers or other people; sometimes violence and harassment outside of work may lead to dismissal for cause from employment; (this is an area that’s constantly changing and expanding and one needs to be mindful of that); (3) disobedience: of lawful orders may amount to dismissal for cause (4) discrimination with coworkers or other employees or the employer may cause dismissal on just cause basis.

Some of the examples where dismissal may not be justified are (1) performance issues: a lot of times we get cases where the employer has terminated an employee for just cause because the employee could not meet the performance matrix. I can tell you in majority of the cases that performance is not considered an element of just cause dismissal.  Performance is something that the court believes that the employer has a job to do due diligence to make sure that they have hired an appropriate employee who is able to perform based on their requirements. If they are unable to meet the employer’s standards then the employer can terminate them without cause but terminating with cause is not something that’s commonly acceptable.  (2) what about meeting targets? now a lot of companies provide certain target e.g., sales ( targets for objectives) that an employee must meet.  When the employee is not able to meet those targets, sometimes the companies try to terminate the employee for cause.  That’s also not generally acceptable.  The court will consider that the employer can terminate the employee without cause but not meeting targets is generally not considered grounds for dismissal for cause.

Other minor infractions for which I can give you different examples are: occasional coming to work late or actual occasional absenteeism which sometimes may be justified, sometimes may not;  rude behavior with your coworker, occasional rude behavior or with your superior—these kind of things – the mistakes that are sort of human mistakes that may happen just because of being in workplace and working with other people.  Those may not amount to just cause dismissal if somebody is not a well-liked person, based upon his or her behavior with others then the employer has always this inherent right to terminate an employee without cause and that’s the direction that the court prefers the employer to take.

What you want to keep in mind about dismissal for cause: is that it is the capital punishment of employment law world: someone has to have some done something so bad, so egregious that the without cause dismissal is not an appropriate remedy and they must be terminated with cause.  2^nd  thing you want to keep in mind is that the approach that the court takes is contextual.  They look at a number of factors in deciding whether in the specific circumstances of that case the dismissal for cause was justified or not.  If you’re ever faced with “dismissal for cause” my suggestion is to contact an employment lawyer and have them review your circumstances.  They can advise you whether you have a case for wrongful dismissal or not. 

Hopefully this helps you understand the fundamentals of dismissal for cause.  If you need an explanation of any points or you have any other things that you want us to talk about, by all means contact us and we’ll be happy to add it in our future lectures.  Thank-you for watching.

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Welcome everyone this is Amer Mushtaq from YouCounsel. 

If you want to understand only one thing, in Canadian employment law, that would be the concept of reasonable notice of termination. It is the single most important concept that has a strong bearing on your employment relationship whether you are an employee or an employer.  We’ll talk about what this reasonable notice is and what does it mean to you and will explain it in simple terms so you can apply it in your own circumstances.  Before we begin, we will start with our usual disclaimer that this course is not legal advice so if you have any specific questions you must contact a lawyer or a paralegal.

Why is reasonable notice important?  Basically, reasonable notice is important because it may translate into significant amount of money.  If you are an employer, you may end up providing a significant amount of money to your departed employee.  If you are an employee, you may be entitled to a large amount of money.  The relevance of reasonable notice is directly related to the money that you may get on termination. Two things you must keep in mind with respect to reasonable notice—if you are terminated without cause and you are entitled to common law rights on termination—in that situation, once those 2 conditions are fulfilled, then you are entitled to common law reasonable notice of termination.  To give you a perspective this reasonable notice could be as high as 24 months of income.  If you make $100,000 income annually then sometimes, if you meet the criteria, you may be entitled to up to two years of your pay.  That’s a significant amount of money on terminations—when you’re actually losing your job.  What is this reasonable notice?  The main thing you want to understand is that the term reasonable notice is called reasonable notice commonly but the proper term is “common law reasonable notice of termination”.  What is this?  It is a Notice that an employer provides to an employee and basically tells the employee that his or her employment is going to end.  This common law notice or termination notice could be given in one of three ways. 

Option 1 is working notice: employee can come to you and say “Hey Mary / Hey John your employment is going to terminate as of December 31^st of this year (let’s say 12 months from now) and I am giving you this working notice.  You are required to come to work every single day as if you are an employee and perform your duties.  We will provide you your salary and when December 31^st comes that’s your last day”.  Then you go home and never come back.  Then you don’t get any more money—this is it.  This is a working notice.  You work the entire twelve months or whatever the duration of the reasonable notice is and then you go home and that’s the end of it.  There’s no money at the end of it.

Option 2: Or the employer may say “Hey John / Hey Mary your employment is ending today.  Please return your keys, return your access cards.  At the end of the day you go home, or you leave now and you do not come back.  Here is the money for twelve months of your pay or they may say we will continue to give you your salary for twelve months until you find another job or something like that”.  But the termination happens immediately, and you get the money for the notice period.  That’s option number 2 which is actually the most common option.  Most employers do not like to retain an employee on their premises who knows that his or her employment is going to end sometime in the future because it makes it difficult for that employee to continue working knowing that he/she are going to lose his/her job some time in the future and there’s a date that has been announced.  Also, it may jeopardize the relationship (it may poison the work environment).  Majority of employers do not like to give working notice.  Sometimes it works better, and employers do that, but mostly the employers do not give working notice.  They would rather give you money in lieu of working notice.

Option 3: is a combination of both.  The employer can give part of working notice and part money in lieu of notice.  It happens sometimes when the factory is closing (the plant is closing) down in three months time.  Your reasonable notice requirement is let’s say twelve months.  The employer may say, we expect you to work for the three months or three months of the work notice and the remaining nine months we will give you the money.  It could be working notice, it could be money in lieu of working notice or money in lieu of notice or it could be a combination of working notice or money.  That’s what a reasonable notice is.  It is a notice that is provided by the employer to the employee providing that employee a specific date which will be the final date of employment of that employee’s notice of termination.

We talked about common law rights.  You’re entitled to reasonable notice if you are entitled to common law rights.  We’re talking about common law reasonable notice.  We’re not talking about the statutory termination notice which is a completely different thing.  One important part you want to understand is that you get common law rights by default—common law rights are presumed.  What do I mean by that?  If you get hired with a company and let’s say you don’t have any written job offer / written employment contract whatsoever, somebody interviews you and says, welcome we’re going to pay you $X amount, this is your position and can you start on such and such a date.  You say “yes”.  And that is an employment contract even though it’s verbal but you have entered into it and when you have entered that employment contract then you, by default, have all the common law rights.  That means if you are terminated for certain specific circumstances, then you are by default entitled to common law reasonable notice of termination. But, the second thing you want to keep in mind is that that Common Law Rights for the reasonable notice of termination that presumption is rebuttable.  What that means is that, that presumption can be displaced by a contract.  If you have a written employment contract the employer can put in a clause which can change your common law right on terminations.  It can take that away—it can remove that reasonable notice by contract.  How is it done?  We’re going to talk about that in the next slide.

Displacing common law reasonable notice: one way to do that is your employment contract may say—first of all it will have a specific termination clause—if in the in the event we terminate your employment without cause, you will be entitled to your statutory termination rights and nothing more.  We are limiting your rights to statutory rights on termination.  We’ve spoken about that in a separate lecture and maybe we’ll talk about it a bit more.  Each province has a specific statute that deals with employment relationship, terminations, and all of those—and they have specific rights for the employees. For instance, in case of Ontario, we have the Employment Standards Act 2000, which has a specific clause that say’s that if you’re employed for X amount of years you get  X weeks of pay as termination pay.  Those natural rights are very, very minimal.  There’s no comparison between the statutory rights and Employment Standards Act and common law rights.  There’s a huge difference. 

1. A contract can actually take away your “common law reasonable notice” and say what you will get is only statutory rights and that’s legal, it’s allowed, an employer can do that. That’s one way of doing that. 
2. The other way is that the the contract may say we retain your common law rights and if the contract retains your common law rights then that’s what you’re entitled to or the contract may not have any clause about terminations whatsoever and if there is no termination clause then the presumption is still there and so you are still entitled to common law reasonable notice.
3. The third way that the employer can do is give you something in between—more than statutory rights but not common law rights. They may say we’ll give you your statutory rights plus two weeks or plus a month or something like that, which may be much less than common law rights but it is at least more than your statutory right.  That could be a clause in your employment contract.  Or in some cases, which is really very rare, your contract may provide you terminations rights which are actually more than common law rights. I have seen this and you may have noticed this, this usually happens mostly in appointments which are political appointments. You would see in newspapers that a large Crown Corporation or semi Crown Corporation have been working—and it’s in the news the C.E.O. did not perform well and they terminated the C.E.O.’s employment.  Then you realize that the C.E.O. got hundreds of thousands of dollars and sometimes millions of dollars in termination—as a severance package and everybody’s up in arms.  But the legal answer that you will get is, unfortunately that was part of his or her contract and so there’s no way that we can take that away.  There are circumstances where termination rights are negotiated much more than common law rights but it’s very, very rare.  You won’t see it.  In my experience it is in these political appointments where this kind of thing happens.  These are some of the ways that contract can displace the presumption of reasonable notice.

Factors for Reasonable Notice: now I said you could get up to 24 months of pay and not everybody can get that—that is an extreme example.  What are the factors that you can keep in mind? what kind of factors would the courts consider in deciding what is an appropriate common law reasonable notice for a specific case.  There is no formula; there is no one reason—there are a variety of factors that the court considers and then decides what would be an appropriate common law reasonable notice for this employee who has been terminated without cause.  These factors are basically listed in a case but they talk about more factors to be considered and they’re called Bardal factors.  This is a term that is used in case law and employment lawyers use this often—every time they refer to Bardal factors, those are some of the factors that the court will consider in deciding reasonable notice.  When you look at the cases, the jurisprudence, the courts have considered as many as about 170 different factors in arriving at what is an appropriate reasonable notice.  There are four common—most common factors that you want to keep in mind.  Those are the essential ones that would apply to every single case: 1. Age: what is the age of an employee who has been terminated? The formula here or the top process here, in courts mind, is that the older the employee is, the more reasonable notice of termination should be.  Courts believe that it will take older employees longer time to find another job as opposed to younger employees.  Their reasonable notice of terminations on the basis of their age will play a role in an increased reasonable notice.  2. Second factor to keep in mind is length of service.  The longer the employee’s service with the employer is, the longer the notice period would be.  If you are a long service employee, then you will get a higher notice.  I have had clients who have worked for an employer for twenty years plus and they may be entitled to twenty four months of pay depending upon other factors.  3. Third factor that is considered is the position and the way this works is what is your position?  Are you a senior management employee, a management employee, middle management, lower management, clerical, technical, engineering person? What is the kind of position you’re occupying?  Then the principle the court applies generally is that the higher the position of the employee, the higher the notice period so if you are a C.E.O. of a company you will probably get higher notice than if you were a much junior employee.  4. The fourth factor is what are the chances of finding another job for that specific employee? There’s no empirical evidence available.  But there are different factors considered.  I’ll give an example: some time ago there were significant reductions in the automotive industry jobs and whatever jobs were being eliminated there were no alternative positions.  Many engineers who had automotive industry experience for many, many years had to retrain to go into another job. That was a factor that for them chances of finding another job in Canada in the automotive industry was slim and so the court would award higher notice.  Those are some of the factors that court will consider in deciding what would be an appropriate reasonable notice and as I said it could be as high as 24 months or sometimes even a bit more. 

What is it that you want to carry from this course (from this lecture)? It is that when you are negotiating your employment contract (you are not hired yet) you are a candidate who is at a stage where the employer is making you an offer and has provided you with an employment contract and if you have any room to negotiate sometimes (you don’t sometimes) you just accept, you’re just happy that you got a job and you sign at the dotted line and you take the job.  In many, many cases you have room to negotiate.  If you do, you want to make sure that your common law termination rights are are not displaced and they remain intact.  I have advised many of my clients when they have been faced with a job offer and they have successfully negotiated that position because if the employer really wants you for that position, if the employer believes that you are an important addition to their team then they will value your negotiation.  They will value that you are going to look after some of your own interests in that employment contract.  The second part is that even if you already have an existing employment contract or you’re not able to negotiate something different you want to make sure that you properly review your existing employment contract because even if it has a termination clause, in many, many cases that termination clause maybe challenge, may be shown or may be proven that it’s unlawful or it’s improperly drafted.  Then that will not rebut the presumption for a common law notice and you may be still entitled to it.  It’s a complex area in employment law—which termination clauses are valid and which are not and if you talk to any employment lawyer, they will give you the advice that over 90-95% percent of the time smart employment law counsel will be able to challenge the appropriateness of a specific termination clause, get it thrown out and then have their client get some reasonable notice.  If you are unclear, if you’re not sure, you want to talk to an employment lawyer so that you understand your rights because what is at stake is a significant amount of money.  Those are two things that you want to keep in mind.  Hopefully, this gives you some understanding of what is common law reasonable notice.  We will have many more lectures. If something is unclear or you want something elaborated upon, by all means reach out to us or write to us with your comments and we will be happy to cover that in future lectures.  Thank-you for watching.

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Welcome everyone this is Amer Mushtaq from YouCounsel.

Today we will talk about judicial officers or judicial officials in Ontario. The context of this discussion is that you can understand what is the role of these judicial officers with respect to your civil matters or criminal matters in Ontario. We begin with the disclaimer that this course is not legal advice, so if you have any specific questions you must contact a lawyer or a paralegal.

Judicial officers are appointed pursuant to specific legislation. In Ontario either it is the Court of Justice Act or the Justices of the Peace Act or some other legislation. There is specific legislation that allows the appointment of these officers. Today we will talk about three common officials that you may deal with, with respect to your matters: (1) Judges; (2) Masters and (3) Justices of Peace.

Let’s talk about a Judge. (1) A Judge is obviously a provincially appointed person, usually somebody who is a lawyer, with 10 plus years of experience. He or she is a decision maker with respect to a number of trials that you may be dealing with. These are criminal trials, family law trials or other civil matters and the deciding person (the decision maker) is usually a Judge who will be making the decisions in these trials. The Judge has—in general terms—the most authority on any legal matter. He or she is always addressed as “Your Honor”. This is just to give you an idea that if you are dealing with a Federal Court Judge or a Judge of the Supreme Court of Canada, then you address them as “Your Lord” or “My Lord” or “My Lady” or “Your Lordship” or “Your Ladyship” depending upon the grammatical sentence you’re making. Generally speaking in Ontario in civil matters you address the Judge’s decision as Your Honor and not as Mr., Ma’am or Sir.

(2) A Master is somewhat similar to a Judge but does not have as much authority as a Judge. They are also provincially nominated. And are mostly lawyers with 10 plus years experience. Masters usually (and they’re mostly in Ontario—in fact mostly in Toronto and then some in Ottawa. This is a category of decision makers which I believe are now being scaled back. The provincial government is appointing Judges more and more as opposed to Masters but Masters are still present and you may end up dealing with them on different matters. Masters deal a lot with motions or different kinds pre-trial, construction lien matters and what not. They don’t preside in trials but they deal with other issues. Generally, you address a Master as a Master and not Your Honor but sometimes because I don’t see Masters that often, I end up calling them Your Honor, which is fine but Master is addressed as Master.

(3) Justice of Peace is a category that you as a citizen may deal or come across most. To become a Justice of Peace you do not require any legal background. They may be lawyers (past lawyers) but may not. As long as you have some work experience either in paid capacity or as a volunteer and you have some education undergrad degree or a diploma of any kind that is sufficient qualification to become a Justice of Peace. Generally speaking these are individuals who have some participation in community, some sort of community service i.e., they have (some sort of connections) in the sense that they have provided service to community to get appointed as a Justice of Peace. Normally you will see Justices of Peace with respect to parking tickets, traffic tickets, provincial offenses, etc as those are the kind of issues that are mostly dealt with by Justices of Peace. You address a Justice of Peace as “Your Worship”. That’s the term to use Your Worship. That term is fading away. A lot of people just call the Justice of Peace, “Your Honor” as well. But properly speaking, the term to address a Justice of Peace is not sir or ma’am but Your Worship.

Why should you know the difference between a Judge, a Master and a Justice of Peace? Most of the time it’s not an issue. Once you are presented before a decision maker by default—whether your matter is going to trial or some other court process is happening—you are presented to somebody who is the decision maker, then you don’t need to worry about whether this is a Judge or a Master or Justice of Peace as long as you know that, that person is the decision maker. The only item that matters is that you know how to address that specific person. In some circumstances it is absolutely crucial for you to know the difference. For instance, if you have to bring a motion in the Superior Court of Justice in Toronto or in Ontario, the first thing you need to determine is whether you can bring the motion before a Judge or can it be brought before a Master? Can the Master give you the request that you are seeking through that motion? Because if you bring a motion that can be heard by a Master and you bring it before a Judge, the Judge may not be too happy about it. Primarily, because Judges have a very heavy workload of their own and if this matter could have been dealt with by a Master, they would prefer that you would have gone to a Master. Depending upon which Judge you come across they may grant you the order or they may just send you out and you will have to bring the motion before a Master. Conversely, if you bring a motion before a Master and the Master does not have any authority to grant the Order on the motion, then this simply means that the Master has no jurisdiction and so the Master cannot give you what you’re asking. The matter has to be brought before a Judge. It’s an important distinction in terms of bringing motions. A lot of times many counsel are confused about whether the particular motion can be brought before a Master or not. If you have retained counsel, then obviously the counsel will do the homework to figure out whether any motion can be brought on that specific issue before a Master or not but if you’re representing yourself then you want to make sure that you understand who do you bring the motion before. Then obviously as I said it’s important for you to know how to address the specific decision maker.

There are a variety of other decision makers that I haven’t touched upon which are appointed also in the province under different legislation. For example, the Ontario Human Rights Tribunal has decision makers that are called Vice-Chairs. These are really Judges for the Human Rights Tribunal but they have different powers, they have different roles than a normal Judge. It’s good to have some understanding of who the decision maker is so you can present your case properly.

In summary, you need to understand who the decision maker is and if the distinction is important to understand that. If you want to read more about Judges their appointments; Masters their appointments and Justices of Peace, I have provided a link which is from the Ontario Courts. You can check it out. Also if you want to know all of the Judges that are in Ontario—that have been appointed—all this information is available online and you can by all means check it out.

Hopefully this gives you some understanding of the decision makers that you may deal with in Toronto or in Ontario Courts. If you have any specific questions or require clarification on any of the specific decision makers by all means send us a comment or question and we’ll be happy to include that in one of our future lectures. Thank you for watching.

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Welcome everyone. This is Amer Mushtaq from YouCounsel.

Today we will talk about obligation to mitigate in employment law circumstances. It is an essential obligation in most of the employment law cases in fact it is a duty on the part of the terminated employee to try to mitigate his or her damages. We will talk about it. We will explain what does it mean to mitigate and what is it that the employee needs to do. Before we begin, we will provide you with our usual disclaimer: that this course is not legal advice. If you have any specific questions please contact your lawyer or paralegal

Let’s begin with mitigation. What does it mean? We will talk about mitigation in its broad sense. Mitigation is essentially the reasonable action that a party (the aggrieved party or the party who has suffered any loss) must take to minimize the loss that it has suffered. Let us explain that by way of an example which will make it easier. Assume that you had a car and you were trying to sell that car as you were leaving the country or you were transferred to another province. You had to sell that car and there was a time crunch. You get into a sales contract with someone who is interested in buying your car. You come to an agreement and the person is willing to buy your car—let us say for $20,000. You have set a date and time when the person will come and give you a check for $20,000 and take away the car. Based on that, you refuse any other offers that other parties that may be interested in buying the car from you and you turn them away because you have already entered into a contract. For some reason the person who has entered into contract with you does not fulfill the contract (does not pay you the money), basically ignores the contract completely. If that is the case then you have suffered a loss of $20,000 (your damages) because you have a valid contract which is not being enforced

What does the law ask you to do? The law asks you to try to mitigate your damages. In this case, how would you mitigate your damages? You will try to sell that car to someone else within the time frame that you may have. Let us say if you are in a time crunch and only have a day left then you put your ad on Kijiji or in the newspaper. You eventually are able to sell the car for a loss; you sell it for $15,000. Your damages really are now $5,000 against the person who had entered into a contract with you for $20,000. This is what you have done for your initial damages for $20,000—you took steps to sell the car to someone else because the law says you have to try to mitigate those damages and you were able to partially mitigate—meaning out of $20,000 you recovered $15,000 and the loss is $5,000. Now, imagine that if you were able to sell the car for $25,000. Then you actually have no losses against the party that you had contracted with. You were able to fully mitigate your damages even though the other party breached the contract—there are no resulting damages. You are not entitled to any money if you were able to recoup all of your losses. That is what mitigation is and that is what it does—it tries to, in a way help the party who has actually breached the contract by imposing on you to try to minimize your damages.

In employment law context what does this mean? In most of the wrongful dismissal cases the duty to mitigate arises because in most of wrongful dismissal cases what you are telling the court is that you have suffered loss or damages in the amount of X amount of dollars ($20,000/$100,000/$200,000) because that was the termination /severance pay /reasonable notice that you were entitled to that the employer did not provide. In that case the law imposes an obligation on you to try to mitigate those damages. If the damages were $100,000, the court imposes a duty on you to do certain things so that the damages could be reduced from $100,000. That’s what is an obligation to mitigate in employment law context. I will talk about how you go about doing this.

One note that you want to keep in mind is that the obligation to mitigate in employment law does not arise in every single circumstance. There are some specific circumstances where you don’t have an obligation to mitigate. Those are very few circumstances. It is not common. You must contact your lawyer and figure out whether you have an obligation to mitigate and if you do, then you make sure that you fulfill that obligation? What do you do in employment law context to mitigate your damages? Essentially, you make efforts to look for another job. Right, that’s how you will mitigate because your damages are employment damages which your previous employers refuses to give you—salary for $X amount for X amount of months. The way you can mitigate is by working for another employer for X amount of months for X amount of dollars. That’s how you can mitigate.

What are the things to keep in mind? The obligation to make an effort. The court requires you to make reasonable efforts and what does that mean? If you are for example based in Toronto or in the GTA and you are working in GTA, the law does not require you to go look for a job in Alberta or Saskatchewan just because you have an obligation to mitigate because that will be considered unreasonable. You don’t have to fetch every single job that is relevant to you around the entire country but reasonable efforts are required.

The second part that you want to keep in mind is that you have to look for a comparable job. What that means is it has to be comparable to the previous job that you had at the former employer. For example, if you were a Manager of Accounts and and you have to look for a job, then you are not required to apply for jobs as the cashier at Walmart or McDonald because that’s not a comparable job. Comparable is in terms of the duties that you had and also comparable in terms of pay. If you were making $100,000 at the previous job, the law does not require you to go look for a job which pays you $75,000. It doesn’t have to be a match for dollar-to-dollar but comparable. If you are making $100,000, then $90,000 or even $85,000 may be considered comparable but anything less than that may be considered not comparable. You make reasonable efforts to look for a comparable job.

Final point is very important. You must keep full records of all of your activities and what that means is (1) that you must keep a summary / a log of all of the activities that you do or you perform in your efforts to mitigate your damages; and (2) then you keep all the corresponding evidence. If you have been sent an email you must keep records of those emails; if you have been sending letters, faxes or making phone calls—you must keep evidence. This matter might go to trial and you may have to prove that you actually made those efforts. Your word alone is not sufficient—you must prove this with evidence that you actually make those efforts.

Let me give you an example of how do you go about making those efforts. Here is something that we ask our clients to look into with respect to job effort. Let’s say we usually give them the copy of this spreadsheet and say you want to make sure that you are following this. This is an example of an Excel spreadsheet. It has multiple columns (1) a date—you want to make sure of what date you are performing that activity; (2) if you’re looking for a job at a search engine like Indeed or Workopolis or a specific company website or a recruiter—you want to document that; (3) the name of the person that you contacted, phone number, email address, etc.; (4) in what industry you are looking for that job; (5) what was the title of the job; (6) was it a full-time job or part-time job; you want to look at all of these things (7) then what was the annual salary—what was the income that was being offered; (8) what was the location; (9) how did you apply—did you send an email, did you call, did you attend in person; (10) how many job postings did you review; (11) how many postings did you actually apply to. These are some of the things and then (12) what was the outcome of these job searches? Did you get any interviews; did you get any call back; whatever the response was you want to document that. This spreadsheet is a summary, it creates a log for you—which you can review, the lawyer can review, opposing counsel can review, the judge can review or the mediator can review. They have a summary before them that shows them what kind of activities you have performed. You must also keep the corresponding evidence. If you send faxes or emails for anything, you must keep those faxes and emails because that is actually what is evidence. You must prove to the other side that you actually performed those activities. That is in terms of job activities. What you do want to remember is: that first of all you want to make sure that you confirm with your counsel or make sure if you are required to mitigate or not—find this out early on. You don’t wait for a few months or midway through your court action. You must know this from the outset of your case. Most lawyers who practice—in our firm as soon as we are retained, we send out a detailed memo to our client basically explaining to them (1) what is mitigation; (2) how they’re required to mitigate; and (3) how do they keep records of that. Then you make sure that you make reasonable efforts to mitigate and that you keep all records.

I’ll give you a quick example of what mitigation entails. I recall one of our clients she lived in St. Catherine. She worked for a video store as a Manager. The entire store closed down. There were no comparable jobs available. She had very limited jobs in her area. Based upon her skill set the comparable jobs that were being posted in her area were either none or minimal. Part of her mitigation effort was that she will look at the newspapers on a daily basis and find that there is no job that she could apply for and then just keep records of those newspapers. At Mediation we had this bundle of newspapers with us basically showing that every single day she went and looked for a job in the newspapers amongst other activities. All of these newspapers are there to demonstrate that there isn’t a single job that was comparable to her skill set. That’s another way. It’s not that you just need to prove what jobs you applied to but whatever activities you did when you look for a job. If you went online and you found nothing you must prove that as well. Then everything you do, for instance calling your friends or attending networking events or meeting recruiters these are all activities that you are undertaking to mitigate your damages. You must record all of that so that the judge / the mediator and the opposing counsel has a full view of what activities you undertook.

Mitigation is an important obligation you cannot ignore it and so it’s important that you have good records, so that lack of mitigation does not end up minimizing your damages. Because if you fail to mitigate your damages the court can reduce your damages and in some cases completely negate any of the damages that you are entitled to, simply because you fail to mitigate your damages.

Hopefully, this gives you a basic understanding of the obligation to mitigate in employment law. Contact us if you have any further questions. Please contact us for any clarifications that you require please let us know and we’ll be happy to add that in the future lectures thank you for watching

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Welcome everyone this is Amer Mushtaq from YouCounsel.

Today we will talk about wrongful dismissal. The issue that we’ll be dealing with today is how do you figure out whether you as an employee are wrongfully dismissed or not. What we have done is pose 10 simple questions that you can ask yourself. Depending upon your answer to those questions, you will be able to understand whether you have been wrongfully dismissed or not. On that basis you can decide to pursue your wrongful dismissal action either yourself or through legal counsel.

We begin with our usual disclaimer that this course is not legal advice and if you have any specific questions you must contact a lawyer or paralegal to get the answers.

We’re going to start with talking about different terms that are used for wrongful dismissal. Some of the terms are wrongful termination/ wrongful discharge /constructive dismissal /dismissal for cause / fired or sometimes people call it a layoff. All these terms are similar or they can be used at times interchangeably but they all represent what is called a wrongful dismissal—which is a blanket term that we use in employment law. What exactly is wrongful dismissal? Is it possible for me to explain wrongful dismissal in one basic concept? The answer is yes.

Wrongful dismissal is fundamentally or basically a breach of an employee’s employment contract—that is the 1^st part. The 2^nd part is that, that breach of the employment contract must be a breach of one of the fundamental terms of the employment contract. What do I mean by those two things? Let’s take (1) breach of employment contract. Many people (and we’ll have a separate lecture where we’ll talk about what is an employment contract and we’ll get into the nitty-gritty of it but over here I just want you to understand this) think that an employment contract is when there is something in writing, two parties have signed it, there’s a written document confirming that there’s a contract and that’s how an employment contract is created. That is not necessarily the case. Once you have an employment relationship with an employer you have an employment contract whether it’s in writing or not. It doesn’t matter if there is no written document. You have an employment contract—it is just an employment contract that is an unwritten employment contract. That’s number one.

With respect to employment contract, I want you to understand this. If there is a written document, whether it’s a job letter/job offer or it’s called an employment contract—all of these things could be similar or same. If you have a written employment contract or written job offer, the terms and conditions that are specified in that contract are obviously part of your employment contract but those are not all the terms of your employment contract. There are and there will be additional terms that are not written in that employment contract which are called implied terms. “Implied terms” means that those terms are assumed in your employment contract even if they’re not written in there. That is because of centuries of development in the employment law area where the courts have written in certain employment contracts terms which are not in writing but they are there and so they’re called implied terms. Your contract, if it’s in writing has two components: (1) one’s the written component and (2) one is the non- written component which is the implied terms. Breach of your employment contract could be either for the terms that are in writing or could be the terms that are implied or could be both. That’s number (1). Number (2), the breach has to be one of the fundamental terms. What are fundamental terms? Fundamental term is very simply one of the important significant terms in the contract. I’ll give you an example. Let’s say your employment contract says your annual salary is $60,000. When you begin employment you start getting paid on the basis of $30,000. Your salary is a fundamental term and the breach of that term is a breach of the fundamental terms of your employment contract. Another example could be that you were hired as a Manager, Accounts Payable. Once you start working, you realize that your position is actually that of an accounting clerk and not as a manager in the in the accounting. Your ‘position’ is a fundamental term and a breach of that term could be a breach of your employment contract. That is just a broad example. Now, you understand the basic concept of what “wrongful dismissal” essentially is—if there is a breach of your employment contract and the breach is one of the fundamental terms of that employment contract then that breach or those breaches can give rise to an action or a claim for wrongful dismissal so that’s the fundamental concept.

Okay, now jumping right into the kind of questions and these are examples or could be more questions but we have picked the most common ten questions. We’re going to address those. First part of the question is when you’re actually terminated—what I mean by that is your employer comes to you and says your employment is ending. This is your last day or such and such date is your last day and you’re terminated /you’re fired or laid off whatever you want to call it. If the general term is that your employment is ending then that’s a termination. These I believe are six questions when you are actually terminated you know that your employment has been ended by the employer. (1) One scenario could be that you did not receive severance at all or the severance you received was improper or insufficient. (2) the second could be the breach of written contract—I said that your employment contract would be in writing and if it’s in writing and there is a a term in that contract that is being breached by the employer you want to look at that. You want to check that whether there has been a breach of your written contract. (3) question number three is whether there’s a breach of your statutory rights—they have not been fulfilled by the employer. (4) Next question is whether your termination is based on discriminatory grounds. (5) Question five is whether the employer conducted itself in bad faith in deciding to terminate you—that is another question. (6) The last question is that the employer is alleging ‘just cause’ for dismissal, i.e., that you have done something fundamentally wrong and then the employer has a right to terminate you for ‘just cause’. So those are the six questions and we will go into each question one by one and will quickly cover those topics but those are the six questions when you are actually terminated you know that you’re terminated.

Now the next 4 questions are when you’re not terminated the employer has not come to you and said that your employment is terminated but you believe the breaches are such that you can claim termination. This is called constructive dismissal. You are constructing it based upon the employer’s conduct that your employment has ended. Questions relating to that one is (1) a change in duties: if there is a fundamental change in your duties it may give rise to constructive dismissal and therefore wrongful dismissal; (2) there may be a change in your remuneration—especially a decrease in your remuneration; (3) change in working environment—the environment includes harassment or is poisonous; or (4) there could be a breach of your written contract. These are four questions that you want to ask yourself to determine that even though the employer has not terminated you, do you have a right or grounds to claim constructive dismissal and wrongful dismissal?

Let’s get into each item one by one. No proper severance or improper severance. This is the most common reason for claiming wrongful dismissal. In fact, 60 to 70% of my employment law practice is really based upon clients coming to us and asking questions whether they received proper severance because they have been terminated. If not, then can we commence a court action and in over 90% percent of those cases the severance that they received is actually not correct—it is improper and so there is usually a good case to commence a wrongful dismissal action so. That is the most common reason—that the employers refused or failed to provide the employee proper severance and so we go after that.

With respect to your severance, we want to talk about 3 things: (1) the severance you may have contractual rights in the severance. What I mean by contractual rights is we’re talking about the written contract that you have. Your written contract may say that Mr. Smith when your employment is terminated and we decide to terminate your employment without cause, you will be entitled to six months of pay or something like that. That’s your contractual right in your written employment contract. For whatever reason, the employer fails to abide by that contractual term and that gives rise to a wrongful dismissal action. (2) Common law rights. Even if there’s no contractual rights or the contractual rights are improperly drafted—unlawfully written—you have common law rights in terminations. In most cases this is what happens that employee has common law rights and the employer either doesn’t know about it or refuses to pick on the right so that gives rise to a wrongful dismissal. Then the number three (3) statutory rights. Remember in a previous lectures, if you have been listening to us, we talked about certain statutes that are relevant to employment law so for instance the Employment Standards Act 2000 of Ontario. Other provinces have similar legislation that contain rights that describe that if you as an employer are terminated you are entitled to termination or severance pay and what those amounts are. If you are not receiving proper severance or no severance at all then that’s one ground that will give rise to a wrongful dismissal action.

A wrongful dismissal action: how do you determine? And this is one area where you will be best served if you consult me, do your Google search and listen to our lectures. That will give you a very good sense of whether you got your proper severance or not. You may be better served if you contact an employment lawyer and get a consultation and find out whether your rights have been violated or not because this is one area that is too complicated and a lot is at stake. You could get significant rights without doubt and if you have no knowledge that your rights are violated you may end up losing those rights. This is one area which is a bit complicated and something to be looked into deeply. Now breach of written contract, like I said you have a written contract and it may have clauses about severance termination rights. If the employer does not follow those rights then, that is a breach which will give rise to wrongful dismissal.

What about commissions? If you are in a position where you are entitled to commissions, you got your severance and termination pay but you haven’t been paid commissions—did not get your commissions that you should have received even after your terminations and you’re not getting those—that may give rise to wrongful dismissal.

Similarly, if you’re entitled to significant bonus and you don’t get that. There could be other rights and it depends upon the contract. There could be all kinds of rights that are in the employment contract that state what will be done, what things you will receive upon termination and you don’t get those and you have a claim for wrongful dismissal.

Breach of statutory rights: as I said briefly, that if you look at Employment Standards Act It talks about terminations and it has a specific formula. Let’s say, you didn’t get those rights, e.g., overtime pay—if you’re entitled to that and you didn’t get it. Then what about severance pay, which is a separate pay category from termination pay. There are specific requirements for that in Employment Standard Act in Ontario (similarly, in other provinces) or any other rights that are stated in the statute and you are denied those rights at termination, then you may have a claim for wrongful dismissal.

Discrimination: this is based upon a breach of the Ontario Human Rights Code. That’s the human rights legislation in Ontario. There is similar legislation in the other provinces. If you believe that you are terminated because of certain discriminatory grounds, for instance, you ended up having some sort of disability and that was the reason or one of the reasons why the employer decided to terminate you. Or because of your gender; because of your sexual orientation; pregnancy; creed; religion; ethnicity—all these grounds are listed in the Human Rights Code—and if it’s a breach of one of those grounds and that’s the reason or one of the reasons or one of the factors in your dismissal then you have grounds for wrongful dismissal.

What about bad faith? Bad faith could be a variety of things—where the employer is acting in bad faith towards you, the employee. One example, is actually coming from a case that I’m dealing with now—is really unrealistic demands—an employee goes away on maternity leave, comes back and her duties are changed to the extent that she’s now required to work for three jobs as opposed to one—which is impossible for her and gives rise to a situation where she may see constructive dismissal. Another example which is not uncommon is unfair performance evaluations—(unfair appraisals) employers sometimes try (specially for long service employees) to build certain grounds so that they can build a case for the dismissal of employee for cause. Then all of a sudden, without any wrongdoing on your part you get to see a series of unfair evaluations/performance evaluations which may lead to a claim for wrongful dismissal.

Surreptitious change in contract. This is something that’s not too uncommon either and this happens to long service employees with 20/25/30 years of service. When the employer is coming to a point where they want to terminate their employment and realizes that they have a significant amount of severance to pay they try to sort of bring in a new employment contract. And do it surreptitiously, so that the employee doesn’t know what he or she is getting into and does not get an opportunity to talk to a lawyer and then signs a contract which was completely unfavorable to him or her without realizing what she has gotten herself into. Those could be sort of some of the grounds that may give rise to bad faith conduct and may give rise to wrongful dismissal.

Now coming to just cause dismissal which is usually the employer saying that you, the employee have conducted yourself in such a bad manner (Performance) that we should not give you any severance at all. You just get paid up to the last day and then you’re gone. You’re not entitled to E.I. or anything and that’s called “just cause dismissal”. Sometimes the employer, though not often, try to use an employee’s performance as grounds for just cause dismissal. Most of the time, performance does not amount to just cause dismissal but that’s what it is claimed. Allegations about conduct. Some of the legitimate examples of just cause dismissal are that an employee has a physical fight with another coworker at the workplace; harassed another employee; conducted violently; used abusive language; stole money from the employer; stole employer’s property: these are some of the legitimate causes for just cause dismissal. Any allegations about misconduct which the employer uses to say that you, the employee, are terminated for just cause and if you believe that those grounds are not valid—those allegations are not fair then, you have a wrongful dismissal case against the employer. One thing that you want to keep in mind and this is the most important part is that ‘just cause’ dismissal is really the capital punishment of employment law world. That is how you want to understand it. Small infractions here and there, like a bad performance review, etc, things like that usually do not amount to ‘just cause’ dismissal. Your conduct should be so bad, for instance, if absenteeism is the ground for just cause dismissal—it has to be repeated. Offences, you’re constantly ignoring the policies, there’s accumulative conduct that shows that there’s just cause or the conduct is so bad—so severe (you defrauded the employer—you breach the trust of the employer) by breaching the confidentiality agreement and things like that are sort of the valid grounds for just cause dismissal. Lack of performance or the inability to perform—sometimes the employers will argue that “you were supposed to sell as a salesperson, you were supposed to sell one hundred widgets per month and you sold only eighty. We have just cause against you”. Not really. If you are terminated on just cause basis then you must ideally talk to a lawyer (employment lawyer) and see if there is a valid just cause under employment law.

Let’s quickly touch upon constructive dismissal. I mentioned 4 scenarios for questions (1) change in duties; (2) change in remuneration; (3) change in work environment and (4) breach of contract. (1) a change in duties: I gave an example that you were hired as a Manager. The employer decides to demote you unilaterally by it’s own decision and makes you a clerk. Now that’s a fundamental change of your terms of employment. Even though you’re not terminated by the employer, the employer has changed the fundamental nature of your duties. So you have grounds to walk out and seek constructive dismissal. (2) Similarly, change in remuneration: if your remuneration is reduced by ten percent or more then that safely can be considered grounds for constructive dismissal. There are ways how you pursue constructive dismissal and that’s a separate topic. Change in remuneration, which is significant enough, can give rise to a claim for constructive dismissal. (3) change in work environment: In the environment you are now you got a new manager who has a harassing behavior towards you, is a bully, who acts and breaches and is in violation of the fundamental code of conduct and that may give rise to a claim for constructive dismissal. (4) and obviously breach of contract: an example could be that you’re still working and you’re showing up to work and you are given being given tasks but you’re not getting paid and you haven’t received pay for the last two months and that could be another reason why you can claim constructive dismissal.

We have gone through ten questions. Pose these questions to yourself and see if you fit into one or more of these categories. If you believe that the employer did not have the appropriate grounds to terminate you or has changed your duties in such a way that you can claim constructive dismissal. Then, that’s the avenue that you can pursue.

Hopefully this was helpful. Please post your questions, comments and anything that you want clarification on and we’ll be happy to cover that in the next lecture. Thanks for listening.

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Welcome everyone. It’s Amer Mushtaq from YouCounsel.

Today we’ll talk about fighting parking tickets in Toronto. This is a very basic lecture that provides some basic understanding of the process and tips on how to fight parking tickets. I am not a lawyer who practices anything regarding parking tickets, so this information is coming from my personal experience with the parking ticket that I had received and I thought the ticket was unfair. You are welcome to post your comments and provide your own tips and your own experience of how to fight these tickets if you believe they are worth fighting. A quick disclaimer, that this course is not legal advice. If you have any specific questions you should contact a lawyer or a paralegal.

Some of the examples of the kind of infractions that lead to parking tickets are: unpaid meter parking; you park in a disability parking place illegally; you park close to a fire hydrant or you illegally park your vehicle generally. These are a few infractions if you want to look into the infractions in more detail, maybe the good source is to go to Google, type in Provincial Offences Act. This is the legislation that talks about all kinds of infractions: parking traffic tickets and what not. That is the source of legislation that you may want to look at if you need to learn more about it.

If you follow the Table of Contents, Part 2 is the one that talks about commencement of proceedings for parking infractions. If you expand this particular part you will see all kinds of information: definition of parking infraction; municipal bylaws; how do you provide the Notice of Intention to Appear; how do you set it down for trial, etc. You can review that in more detail and other information in the Provincial Offences Act. These are some of the examples that I can think of—that I provided a view of some of the common incidences where you get a parking ticket.

Once you receive a parking ticket you have three options. (1) you pay voluntarily within seven days; (2) you pay the set fine which is to be paid in 15 days; or (3) you set a Trial date which is to be done in 15 days. Item number (1) voluntary payment: if the face of the ticket states that X amount of dollars can be paid as well into payment then you can make that payment, otherwise it will state the amount of fine and then you can pay that fine within 15 days. There are easier ways in Toronto to pay those fines or voluntary payments. You can do it online on the City of Toronto website through visa or any other credit card. That is pretty straightforward and you can do that.

If you need to set it down for trial—which you know my recommendation is—if you have time and energy to challenge the parking ticket then that is a better strategy (even if you think that you deserve the ticket, i.e., you did cause that infraction). You may be able to save some money by disputing it. For trial you literally have 15 days from the day that the infraction ticket is issued to you. One of the ways that you can set it down for trial (the only way) is that you have to appear in person at that Court Office or somebody has to appear on your behalf (as your agent) in that Court Office. It has to be done physically. You go there with your ticket and then stand up in the queue. Go to the window. You say “I want to challenge this ticket. I want you to set a date for Trial”. They will mark that this is the Notice of Intention to appear in court that must be done within 15 days. If you don’t do it within 15 days then it may be determined that you are actually guilty of that offense and your penalty may be set. There are consequences if you delay it. You must do it as soon as possible.

Once you have been scheduled for trial you will receive the Trial Notice in the mail. It will have a date on which you have to appear in such-and-such court and such-and-such time and you will have a court number indicated on that Notice. You appear at the Court. You will notice when you go outside of that courtroom that there will be a small board which will have a list of all the people who are attending that court that day. Find your name, then, make sure that you have the correct time and then make sure that you are 10 or 15 minutes before the opening time. You line up outside the door of that courtroom because you do want to be ahead in line to get dealt with sooner.

In terms of your options, once you are in that line and the door opens you will see that the prosecutor will be at the front, close to the bench where the Justice of Peace will preside. Everybody lines up on the right or left side of the prosecutor and the prosecutor will deal with you one by one. This is prior to the Justice of Peace even attending or coming there. This is a preliminary process. There is a queue. You get to your number and then the prosecutor will ask you how you do you want to plead. You can either plead guilty or not guilty—that means you want to proceed with the Trial. You can plead guilty with an explanation which is an interesting way of pleading guilty but I’ve seen that happening at least in the process that I attended and that you are guilty you made that mistake of illegally parking or improperly parking but you have an explanation that could get you some sympathy from the Justice of Peace. Then you can also say to the prosecutor that you want to wait for the police officer to arrive and then you will decide what you want to do. That is an important thing to know because the officer who has issued you the ticket—that officer must be present for your case to proceed especially if you are pleading not guilty. This is a common way to get rid of these tickets because often times officers have multiple commitments and they cannot attend on that particular day with respect to your matter. If he does not attend on that particular day when the time comes for you to appear before the Justice of Peace, then your matter simply gets thrown out. Oftentimes, it is actually in every single case, what I suggest is that you should wait for the police officer and see if the officer is attending. If the officer is attending, then you can decide what you want to do. Those are some of the options prior to commencing the trial process. Now the Justice of Peace arrives. Everybody stands up. The Justice of Peace sits down. Then one by one the prosecutor will call in individuals. You will notice (I mean I when I attended this court I thought it was like a zoo), the prosecutor is going through about 100 people in like 1 to 1.5 hours. They have to decide if somebody is accepting the guilty plea and that needs to be entered, the person has to accept it, get the fine, get the notice provided to him and then move out.

This is a pretty fast process. There are advantages and disadvantages in that. We will talk about it briefly. You are called and normally what happens is the prosecutor will complete all of the people who have pleaded guilty because that is faster and will hold off on matters where the officer has not shown up. Basically you know he or she will wait till pretty much the end to see if the officer shows up for that particular case so that the matter can proceed to trial and then the last part are the people who are pleading not guilty and they are proceeding with trial. That is how the process begins.

When it is your turn you want to make sure that when you’re appearing in the court you are dressed properly. It does not have to be a suit and tie but something presentable and you want to be humble. You want to gain the sympathies of the Justice of Peace who is always addressed as Your Worship. It is not your honor. Judges are addressed as your honor. Justices of Peace are addressed as Your Worship—so you address the Justice of Peace as Your Worship, answer the questions when asked (answer only the questions that are asked), make your submissions when they’re allowed. Do not ever interrupt the Justices of Peace, do not interrupt the prosecutor. This is the simple basic manner of exchange (of communication) that you must follow in court because under no circumstances do you want to upset the Justice of Peace because believe me that you will not win any favors by making unnecessary arguments with the Justice of Peace. You want to explain your situation, especially if you have a reasonable explanation. When I attended twice on the same matter, I noticed that every single time somebody came up with an explanation which kind of made sense to the Justice of Peace—every single time it at least resulted in reduction—a significant discount in the fine. I saw fines which were requiring the penalty of $200 or so came down to $30 – $40 or so. You could get a significant reduction in your fines if you have a reasonable explanation.

The explanation could be that you parked by the fire hydrant and it was raining or there was snow and you couldn’t see it properly—things like that, or you had some emergency and then you needed to rush to someplace—all of these explanations are not enough to justify that your case may be acquitted unless you have an explanation that really challenges the validity of the ticket that is being issued. We all have issues in our lives on a day-to-day basis which put us in a situation that we may end up committing infractions that we were not hoping that we will commit—it happens—and Justices of Peace are usually cognizant of that and they take that into account. That is one reason why I say that even if you feel that the ticket was properly issued just by sheer fact that you go all the way to the court, schedule the trial date in person, attend the trial and provide an explanation—the chances are that you will get a significant discount in fines

I’ve added a term called Use of Photos. If you have reason to believe that the ticket was improperly issued, you want to make sure that you take photos right at that time when the ticket was issued—not afterwards. For instance, if you were given a ticket that you parked within three meters off the fire hydrant and you believed that you were not within three meters but four or five meters or something you want to take pictures right then and there. Make sure that the pictures are able to prove what you are saying. You want to make sure that those pictures are notarized. (A) you want to take the pictures yourself and (B) make sure those pictures are notarized so you can use those pictures as evidence at trial. Those are some of the things to keep in mind.

I wanted to share my experience with you and why I ended up in front of the court for this issue. One Sunday morning I was meeting some friends for brunch in Liberty Village in Toronto. As it was Sunday morning I arrived there early. There were lots of street parking /meter parking available. I chose a very convenient spot. There was lots of parking available. I parked my car on the first possible parking spot on that street—in front of the meter or close to the meter. I went to the meter. I took out the ticket. I paid it. I put the ticket on my dashboard and went to attend my brunch. I came back within the time that I had paid for and lo and behold! I see that there is a parking infraction ticket on my windshield. I was quite upset to see that. My initial thought was that the officer did not see that I had paid for parking so I picked up the ticket and I read it. It said parked within three meters of fire hydrant. That upset me and when I looked on the side of the street, sure enough there was a fire hydrant there. I was upset and I was upset primarily because it was a City parking. The City had put the meter there. It was the City that had put the fire hydrant there. It was not a temporary fire hydrant. It was a permanent fixture. Why would the city allow parking within three meters when they have put a fire hydrant there? You can’t send 2 controversial messages. I only looked at the availability of parking and the parking meter and because I noticed that parking is allowed, I did not bother to look further to see if there was a fire hydrant there. I thought this was a mixed message. It was improper and under the circumstances my tickets should be thrown out. That was the principle fight that I wanted to take. The end result was that I was able to get my taken thrown out—not because I had a valid explanation but my trial took so long that I believe the prosecutors got tired of it and the Court got tired of it. In my second appearance, the police officer just did not show up and they threw my case out. That was one example of how these things operate. But in your case there may be circumstances where the ticket is genuinely unfair and so you want to fight it. But again, you want to make sure that it is worth your time and effort. If it is not, just pay the fine and move on.

Hopefully this is helpful. I will invite you to share your experiences with parking infraction and share any tips that you have—any suggestions that you have. By all means post that on the video (in the comment section). Hopefully, you have gotten some beneficial information from this lecture. Thank you for watching and we will see you in the next lecture.

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Welcome everyone.  This is Amer Mushtaq from YouCounsel.

Today we will talk about how do lawyers charge their fees in Canada. Before we begin, there is the usual disclaimer that this course is not legal advice.  If you have any specific questions, you must contact your own lawyer or paralegal or the lost sight of opportunity for and for its.

Legal fees usually have two components: (1) one is the legal fees itself, which is paid to the lawyer and (2) the second component is disbursements.  Disbursements are all of the costs associated with your legal case.

Let’s talk about disbursements.  One of the things, that we can give, as an example of disbursements, is court fees.  For instance, if you commence a court action in the court you will have to provide certain fees for the commencement of that court action.  Similarly, there are other instances within the court action where you may have to provide some fees along with it.  For instance, if you are bringing a motion, there are fees for a motion.  If you are setting your matter down for trial, there are fees for trials.  So court fees are part of disbursements that clients are responsible for.  Similarly, process server fees—process server is a glorified term for a high-end courier if you call it that. If you have watched any movies where you see that somebody is at a restaurant or a club and a person taps them on the shoulder.  When the person turns around he says John Smith? And the answer is yes.  Then they hand over certain papers and say you have been served.  The person who is doing that role of serving documents is called a process server.  Process servers do a variety of things for law firms and their clients.  They file documents with the courts, serve it on different parties, get records from the court and so on and so forth.  They charge their fees which are part of a client’s disbursements.

Similarly, there are fees like agency fees.  For example, if you go to mediation and you have to hire a mediator the cost of that will come under agency fees.  In medical malpractice cases you may be getting your medical reports from doctors and other sort of clinics and those may fall under agency fees as well.  Any fees that you pay to some third party e.g., when you hire actuaries or damage consultants to provide expert evidence to the court and there may be fees associated.  All of those come under the umbrella of “agency fees”.  Then there are smaller kinds of fees e.g., for copying, binding, faxing and long distance calls.  The key thing to know here is that disbursements are costs that are associated with your particular case—depending upon what it is.  Those costs are the responsibility of the client. Mostly law firms obtain a retainer from the client and they use that money to pay for the disbursements as they go along or they can ask the client to pay directly to the vendor for those disbursements.

Coming to legal fees, the fee structure is generally of three kinds.  (1) hourly fee structure; (2)  flat or block fees or fixed fee structure; and (3) is contingency fee structure.  I will cover each one by one.  Hourly fee as the name implies is based upon the number of hours that the lawyer works on your case and then charges it accordingly.  For instance, if a lawyer charges $400 an hour and he works on your file for two hours—then the legal fees are $800 plus tax.  Hourly fees are captured usually at one tenth off an hour.  When you see a notation of .1 as the time entry for the lawyer, that indicates that the lawyer has worked on that specific tasks task for six minutes or less.

In hourly retainers you will see quite detailed invoice statements from the lawyer indicating the date and the time that the lawyer worked on your specific matter i.e., what dates that the lawyer worked on your file and what specific tasks did he or she perform in that file, then how long did it take him to do that.  Those are recorded as the lawyers do their work.  They have a software in most law firms where they keep on recording and then once the invoice is generated all of that information is already there. Hourly fees are not dependent upon results.  If the lawyer has worked X amount of hours—whether you win the case or you lose the case—you are bound to or are liable to pay those fees.

Second model is the flat fee / block fee model which is now becoming more popular primarily because clients would like certainty in terms of what cost they will incur for a specific matter.  These, as the name implies, are fixed fees and mostly they are coded per specific task.  For instance, in employment law practice if we are drafting a statement of claim or statement of defense on behalf of the client, we will and the client is interested in obtaining block fee quote, then we will advise the client based upon the amount of work that we will have to do, that this specific task will cost $X amount.  Those tasks are then listed in the retainer agreement along with the fees that will be charged.  The retainer agreement also covers some of the unanticipated costs that may arise—for instance if the other party brings a motion, which was not part of the usual court process, then the lawyer may advise that if that happens then $X amount will be charged for that particular task.  The main function of block or flat fees is that they provide certainty both to the client and to the lawyer in terms of the cost of the specific work that is being done.  Again, like hourly fees, these are not contingent upon results as long as the lawyer has performed the work, the success of that matter is not relevant in this case and the lawyer is entitled to the fees that are agreed upon.

Third model is the contingency model.  As the name implies, it is contingent upon the results.  Most contingency retainers indicate that lawyer will only get their fee if the client is successful either in a settlement or in a judgment.  If the client is not successful, then there are no fees towards the lawyers.  In contingency fee models the lawyer takes significant risk on the file.  Obviously his or her analysis of the case is that strong that he or she is willing to put his / her own time and effort with hopes that there will be some fees generated because of results that the lawyer will get achieve.  Contingency fee model is usually based upon a percentage of success.  It could range anywhere from 25% to 35%.  Once the settlement is achieved or the judgment is awarded that percentage is paid as legal fees.  Important thing to keep in mind in contingency fee retainer is that if your matter goes to trial (all the way to trial) and you are unsuccessful / you lose the case, the court will award some legal fees against you to be paid to the other side.  If that is the case, then you the client is responsible for payment of those fees. The lawyer is not responsible for paying fees to the other side.  The only risk that the lawyer is taking is upon only his fees but not on the other side’s legal fees.  If you lose, then you have the burden to pay the legal fees of the other side.  Finally, keep in mind that all of the disbursements that are incurred even on a contingency fee file are also client’s responsibility because these are costs associated—these are not monies that are to be paid to the lawyer, but are paid to the vendors and third parties.  Those are always the client’s responsibility—whether they pay at the outset or whether they pay towards the end, depending upon which law firm and what kind of case you have.  That is the contingency fee model.

Those are the three major models that are in place.  I want to go back to the block fee model one more time.  This has become popular.  As I indicated, one of the primary reasons why it is so popular now and increasingly so—and probably as you know, still underutilized is because Law Societies across Canada have generally now created this option of hiring lawyers on a specific task basis.  It is called unbundled services or limited scope retainer and I have talked about in a separate lecture on self-representation.  You can find more information on that.  Essentially the idea is that because the legal fees or the costs of retaining a lawyer have become so exorbitant it is so hard to retain a lawyer on a long term basis.   Depending on the length of the entire file you can actually choose when you want to bring in a lawyer to do a specific task and then just pay them accordingly.  Because there is now the option of unbundled services and specific limited scope retainers you can actually negotiate flat or block fees for that specific task and then have the lawyer represent you only for that part of your case.  Then you can continue to perform the representation of your case on your own or you can have the lawyer represent you for the entire length and still negotiate the flat fee.  This does give you some certainty.

Let’s go back to now the last slide that I want to talk about which is the selection of lawyers.  There are two things that obviously the clients want from a lawyer—(1) they want the certainty of the legal fees i.e., they want to know exactly how much money they will incur with respect to a matter and (2) they want some certainty or guarantee in terms of the results that will be achieved.  I want to talk briefly about both things certainty and legal fees.  It is something that obviously people want—they want to know how much they’re going to spend—if you are buying a pair of pants you want to know exactly how much you’re paying.  You do not want to be in a situation where the manufacturer says, “well it depends on how often you use the pants” and “you know how you use them” and what not—and our fee or our costs for the pants will be based upon that.  It is an odd way to pose that—because the legal structure is so different.  The certainty is possible in some cases while in some cases not.  I mean, you get absolute certainty when you have block fees because you know how much you’re incurring. 

But, even in Block fees there are unanticipated steps that may happen, not because of you, but because of the other parties—especially in court actions.  Even though you know with certainty exactly how much you will pay for that action—an unanticipated action, it may still increase the overall cost of your legal action. Certainty is achievable.  It is more and more possible.  In my practice I am pretty confident about every single step and how much it will cost my client.  I can provide certainty but sometimes it’s not possible to do so.  The second component is: results.  You be wary of any lawyer who guarantees success of any kind because the simple fact is when you have a court action, it is a judge or a panel of judges who are going to decide and they may decide against you no matter how strong your case is.  There is no guarantee.  A lawyer can always indicate to you that based on previous cases and based upon jurisprudence your chances of success is very high i.e., 99% or 99.9% but it can never be one hundred percent guaranteed—because the lawyer himself or herself is not the decision maker, somebody else is.  And also depending upon how your case performs—you may have a bad day at court and your testimony may not be as strong as your case is and that may jeopardize the success of your case.  So there is no guarantee of results.  Yes, the lawyer can advise what are the chances of success and your chances of success could be very high.  Those are sort of the two cautions. 

With that in mind, I want to talk about whether you want to hire a lawyer whose legal fees or hourly rates or contingency fees are low vs. a lawyer who charges a lot more.  What role should play in your decision to hire lawyers?  Obviously, I completely agree with you that the cost of legal services are a strong component for a client to decide which lawyer to hire but I want to give you a word of caution that hiring a lawyer is no different than hiring a plumber or hiring a general contractor.  You would not simply hire a plumber or a contractor because the rates that that person is offering are the cheapest.  The same principle should apply in hiring a lawyer.  My recommendation is that fees should not be the sole factor for you to decide whether to hire the lawyer or not.  It should be one of the factors.  You should obviously get referrals, get some understanding of whether the lawyer has expertise in what you want, whether the lawyer will be suitable for your kind of case and obviously whether the costs are within your reach.  It should be one of the factors but not the sole factor.

Hopefully this lecture has given you some insight on how lawyers are retained and how they charge their legal fees in Canada.  Look forward to any comments and anything else that you want to explore in this area.  Further please send us a comment or send us a note and we’ll be happy to include that in our next lecture.  Thank-you for watching.