Archive for October, 2020

UPDATED Eligibility for Canada Emergency Response Benefit (CERB)

Monday, October 12th, 2020

(Please check the lecture titled “Update April 16: Eligibility REVISED – Canada Emergency Response Benefit (CERB)” posted April 16, 2020, which has the latest update on eligibility for CERB.) This lecture looks at the legislation, Canada Emergency Response Benefit Act, which received Royal Asset on March 25, 2020. It explains the eligibility criteria for CERB directly from the legislation. This lecture is an update on our previous lecture on the same topic, so kindly review both lectures to understand the scope CERB. Canada Emergency Response Benefit Act: https://www.parl.ca/DocumentViewer/en/43-1/bill/C-13/third-reading#ID0E01C0AA Assessing Residency Status (in the context of income taxes not CERB) provided only as an example: https://www.canada.ca/en/revenue-agency/services/tax/international-non-residents/information-been-moved/determining-your-residency-status.html

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

 

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

Government has announced additional changes for C.E.R.B. (Canada Emergency Response Benefits). It has allowed additional people, to be eligible. Still, not everybody’s eligible, but there are more people who are eligible. Who are those people? How has the criteria changed? Today’s update is all about that. What we have done is, we have used the slides from our previous lecture and then all the changes that the government has made we have posted these in our slides in blue color, so you can easily see what are the changes that have been made from the last time we provided a lecture on this.

We begin with our disclaimer that this lecture is not legal advice.  If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or Canada Revenue Agency with respect to Canada Emergency Response Benefit.

Most of the criteria is the same, so we will not go into too much detail about that.

  • You need to be at least 15 years old. This is straight forward.
  • You should be residing in Canada. Not much has changed with respect to residing in Canada. But there are some clarifications that we can post.
  • temporary foreign workers are eligible
  • international students are eligible
  • permanent residents are also eligible.

I just wanted to point that out. The only requirement is that you should be residing in Canada and you should have a valid social insurance number and of course you meet the other eligibility requirements.

A number of people have asked this question: that they were traveling overseas and for some reason they are stuck there and they are not able to return to Canada. Are they still eligible if they meet all the other conditions? I quite frankly do not know the answer. No clarity has been given on the Government of Canada website. I would assume that, the person is a resident of Canada and they have been temporarily stuck outside of Canada, so they should be eligible. But, you should contact C.R.A. to confirm the answer to this question.

  • The requirement for $5000 has not changed. To be eligible, you should have earned $5000 gross income in the last 12 months or in 2019. That requirement remains the same. The income should include employment income, self-employment income, if you have earned any maternity or parental benefits, all of those are included.
  • Previously the requirement was that you must have stopped work due to Covid-19 and that was the only requirement for eligibility and other reasons for stoppage of work would make you ineligible. That has changed. But stoppage of work is still “stoppage of work due to Covid-19”.  It is still one of the reasons that will make you eligible.
  • Some of the conditions were you have been let go from your job and previously it said that your hours have been reduced to 0. That is no longer the case because the current eligibility allows you to work certain hours based on certain income.
  • if you are in quarantine or sick due to Covid-19 or
  • you were away taking care of someone who was sick due to Covid-19, or
  • you are taking care of children who cannot go to daycare or schools because of Covid-19,

All of these are stoppage of work reasons due to Covid-19.  But, more importantly, what I want you to note is that these are only examples.  This is not an exhaustive list that relates to stoppage of work due to Covid-19.  There may be other circumstances in your case in which you are not working somehow related to Covid-19, but the situation is not covered here and so you may still be eligible. The key thing to note is that you have not voluntarily quit your job.  Because, if you have done so then, you will not be eligible for Canada Emergency Response Benefits.

  • Now the eligibility change as I noted in blue is that people who are entitled to employment insurance benefits either regular or sickness benefits are now eligible for CERB What does this mean? We’ll explain that by way of some examples. Let’s say your stoppage of work is unrelated to Covid-19, but you are eligible to receive regular E. I. benefits, then now you are entitled. Previously if your employment contract was ending, regardless of Covid-19 you knew that your employment contract is ending on May or June or earlier. Then that’s the end of contract. It had nothing to do with Covid-19 and that would make you ineligible for CERB, but now you are eligible.
  • Similarly, you may have received the Termination Notice of your employment months and months ago—you may have received the Notice sometime in August of last year—that your employment would end in March of 2020. That was obviously unrelated to Covid-19.  But, because of this particular change the government has introduced, now you are entitled to CERB Also, if you are on sickness, E.I. sickness benefits, but the reason for sickness is unrelated to Covid-19, then you will still be eligible for CERB Previously the reason for the illness had to be related to Covid-19, but now if your reason for illness is not related to Covid-19, you will still be eligible.
  • One more change the government has introduced for eligibility is for people who have exhausted their regular employment insurance benefits, during a certain time period which is between December 29th 2019 to October 3rd 2020, these will be people who will also be eligible for CERB let’s explain that by way of example as well.

For example, if your employment was ended and you are now looking for work but you have received employment insurance benefits (regular benefits) during this period (between December 29th 2019 & October 3rd 2020), then you are now eligible for CERB One of the examples could be that your stoppage of work occurred prior to Covid-19.  For example, you were terminated from your employment in July of 2019 and you are entitled to regular E.I. benefits.  Those benefits continued beyond December 29th 2019—then you are still eligible. If those benefits expired prior to December 29th 2019, then you are not eligible.  Or, if you were terminated because of unrelated reasons, unrelated to Covid-19 but you received regular E.I. benefits, then you will get CERB—you’ll be eligible.

  • This also applies to seasonal workers. For example, a lot of construction workers work in the summers and then they receive E.I. benefits for a certain time period. If those people were receiving benefits, between December 29th 2019 and October 3rd 2020 any time in that time period—then they will still be eligible for CERB even though their end of seasonal work was unrelated to Covid-19.
  • Similarly, if you had received sickness benefits which were unrelated to Covid-19, but you were entitled to sickness benefits, E.I. sickness benefits during this time period then you will be eligible for CERB

So the key thing—the common thread in this eligibility is that CERB is now being extended to people who have received E.I. regular or sickness benefits between December 29th 2019 and October 3rd 2020.

What are the changes made to the income during the CERB period? There are certain changes.  It is important to note.  Previously what was stated was that your income in the initial 4-week benefits period. An initial 4-week benefit period, if you recall, started from March 15th and ran up to April 11th.   Then the requirement was for 14 consecutive days your income had to be 0 in that time period. That has changed now,  Now when you’re making your 1st claim—so it is not tied to that particular 1st initial period—for the 4-week benefit period, your income for at least 14 consecutive days should not exceed $1000.00 and that is gross income. It is no longer 0, as long as you have not made more than $1000.00 in 14 consecutive days, in the 1st claim for your 4-week benefits period, you are now eligible for CERB

Now what does this term ‘income’ include? This is been explained a bit more in detail so let’s go through that.

  • tips that people earn and declare as income – that is considered income;
  • non-eligible dividends: these are basically monies that you receive from a corporation, small businesses;
  • honoraria: this is usually for volunteer workers royalties;
  • royalties for artists

These are some of the examples of income.  And obviously if you have earned a salary or if you have earned your self-employment income – then that’s all income

The same definition is used for the $5000 dollar requirement, what is considered income—the same definition applies here.

Please note that pension, student loans and bursaries are not considered employment income and they should not be included.

What about subsequent periods? Previously the requirement was that for subsequent periods your income had to be 0 that is no longer the case.  Now the requirement is that your employment income should not exceed $1000 for the entire 4 week benefits period. If it is not exceeding $1000, then you are eligible for CERB This is an incentive for people who are part-time or work less hours and want to continue working certain hours and earn some money.

The important thing is for people who are working part-time and earning less than $1000, the money from CERB is not top up.  It’s not that you are going to get additional money to complete the $2000 you will get the whole $2000. If you earn $1000 and you get CERB for $2000 that is $3000, so there is some advantage to people who continue to work part-time or for reduced hours.

Now income from other benefits, what is stated is that as long as, if you’re getting, for example, disability payments or other provincial support payments or territorial payments you need to look at your own provinces’ rules to see whether the rules allow you to get the support payments in addition to CERB And so each province has to decide that.  What the government website states is that government has encouraged the provinces to allow people to keep both payments.  My understanding is that so far only British Columbia has confirmed that it will allow temporarily people to keep CERB and their disability payments or other social assistance payments.  But for other provinces I’m not sure.  Please check with your province to see what the rules are with respect to both payments.

We’re talking about employment insurance or a CERB—which one you choose? Or can you choose between the two? If you are already receiving E.I. benefits whether regular illness, maternity or parental, you will continue to receive E.I.  If you were receiving less than $2000 a month, the amount will not increase to $2000 it will remain whatever you are receiving. If your E.I. expires before October 3rd 2020, as I have mentioned earlier, you can apply for CERB. And previously the requirement was that your stoppage of work needed to be related to Covid-19 and now that is no longer the case.  If your E.I. expires prior to October 3rd 2020 you will be eligible for CERB. If you have already applied for E.I. you should not apply for CERB.  It will automatically be converted to CERB if you applied on March 15th or later.  If you are eligible for E.I. before March 15th you will receive your regular E.I. benefits and if you are eligible for E.I. on March 15th or later you will receive CERB.  Again the payment amount for CERB is fixed—its $500 per week and that’s what you will receive. But if your E.I. is less and you are already receiving that lesser amount, your E.I. will not increase, you will not get CERB for that amount.

Let’s talk about this additional eligibility summary.  Let’s summarize it. Who are people who are now going to get CERB?

  • People who have lost jobs before Covid-19 or unrelated to Covid-19 but received regular E.I. between December 29th 2019 and/or later but before October 3rd 2020. These are people who may not have previously been eligible but now are eligible.
  • People who are eligible for regular E.I. benefits—people who are terminated from employment unrelated to Covid-19, for example, end of contract, they are now eligible for CERB.
  • People who are eligible for the E.I. sickness but their sickness is unrelated to Covid-19 they will be eligible for CERB now.
  • Seasonal workers, as I indicated, who received regular E.I. until December 29th 2019 or later—they are until October 3rd 2020 they are entitled to, they are now eligible for CERB.

Please know that there are many people who are still not eligible for CERB

  • Some of the people who are still not eligible are those who have lost jobs before the onset of Covid-19 and did not qualify for E.I.  These are people who did not have sufficient insurable hours to qualify for E.I. and they are not eligible.
  • People who were out of employment for a certain time period and they are now looking for work—they are not eligible. People looking for work but did not receive E.I. between December 29th and October 3rd 2020, they are still not eligible.
  • Part time people, reduced hours people, those who make less than $2000 but earn more than $1000 a month—they will not be eligible for CERB and, of course,
  • People who did not earn $5000 in last 12 months of 2019 they are still not eligible for CERB
  • And, finally, people who have who are receiving E.I., but their E.I. is less than $2000 a month, you’re not getting a top up—they’re not getting CERB; E.I. is what they are going to get.

Hopefully this gives you some more clarity about what are the changes that have been made. I understand that a lot of people may still not be eligible and we hope that there may be additional changes that will cover people who are in the need of these payments and who may not otherwise be eligible.

Thank you for watching.

Coronavirus (COVID-19) AND Temporary Lay-offs in Canada

Monday, October 12th, 2020

This lectures answers whether a Canadian employer can temporarily lay-off an employee due to the recent outbreak of Corona Virus. It also explains employees’ options if the lay-off is unlawful.

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

 

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

Based on the inquiries that I have been receiving lately from employees and various employers, I believe there is some confusion about the right of an employer to temporarily lay off an employee. I wanted to post a lecture about this, although we had posted a lecture on this topic back in 2017—which is still available—but there is some additional information in this lecture.

As usual we begin with our disclaimer that this lecture is not legal advice. If you have any specific questions regarding your issues, you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

In today’s lecture we will explain the difference between a layoff, which is termination and temporary layoff. We will talk about, under what circumstances can an employer temporarily layoff someone’s employment.  What to do if someone is laid off temporarily and that temporary layoff is unlawful?  What are the entitlements on a temporary layoff?  Now a lot of people when they are terminated from their employment they use this term / they say that “I have been laid off”. Technically, normal people say that; but legally speaking that is not an appropriate term. When an employment has ended completely, that is termination or dismissal or severance of employment.

But, what is important to note, is that in that case the end of employment is permanent. You’re not going back to that employer after a certain period—if their business improves or corona virus ends or whatever.  This is a final and a complete severance of ties with that employer. That is essentially termination which is different than layoff, which is a temporary layoff thing.  By temporary it means that there is a temporary interruption in your employment. You are still an employee.  Employment has not ended as under the Employment Standards Act. The temporary layoff could be up to 13 weeks in 20 consecutive weeks or in certain circumstances, it could be up to 35 weeks in 52 consecutive weeks. That is the length of the temporary layoff.  If the employer does not recall an employee within that time period, then that temporary layoff automatically becomes termination of employment and triggers termination of employment rights. A temporary layoff is slightly different than the layoff that we normally use, which is the end of employment.

Can my employer temporarily lay off my employment? The answer is yes and no.  In Scenario number one, there is a specific right, there’s a specific clause in your employment contract, that allows the employer to temporarily lay off an employee in certain circumstances or if you are a unionized employee, then it should be in your collective agreement or there has been past practice. For example, if you work in a factory and during downturns the factory lays off certain employees and it happens all the time, you have been laid off previously, then in those specific circumstances the employer does have a right to temporarily lay off employees and that would apply in today’s world where because of coronavirus, the businesses may be slow and you and your employer may not have sufficient work. But if there is no specific right in the employment contract or on the basis of past practice then the employer does not have an automatic right to temporarily lay off an employee. If an employer does that, then essentially the argument from the employee side is that, this is triggering the terminations, by sending me away even though you are saying that we are temporarily laying you off because the employer does not have that right that can potentially trigger termination rights for that employee.

Ok, so then if you are temporarily laid off and it is unlawful because the employer does not have that right, then what do you do? You essentially have 3 options.

Option number 1: is that you accept the temporary layoff and you do nothing. By doing nothing I mean that you do not dispute the employer, you do not challenge the employer’s decision and then you go and apply for your E.I. or Canada Emergency Relief Benefits and what not. But the problem with that is, in that case what you’re risking is the change of term in your employment agreement—essentially by accepting that temporary layoff. If there is another scenario, different scenario, not necessarily a pandemic situation, but an employer’s business maybe slow for some other reason, then the employer now potentially has a right to temporarily lay you off again because now by accepting a temporary layoff, it does become a past practice and then the employee can use that in a different scenario.

Option number 2: is you dispute or you challenge the employer. You say, that you do not have the right to temporarily lay me off based on my employment contract. Then what do you do? Essentially what you’re saying is that by temporarily laying me off you are terminating my employment.  Therefore, give me my termination rights—whether it’s termination pay, severance pay and / or reasonable notice. These are 3 different scenarios in combination or separate that you may be entitled to.  Therefore, you know you need to give me that money. Now the difficulty with that, is that, if the employer disputes that or if the employer is not willing to make your payment for the severance because either the employer does not have sufficient money because of the economic situation, then you are in a potential legal fight.  And if you know anything about courts—these days the courts are working on a reduced scale because of the environment / because of the circumstances of coronavirus.  Courts are dealing with emergency matters.  It may take a long time for you to resolve your dispute—a legal dispute with your employer.  Now, aside from worrying about your health issues and other circumstances, you are stressed out about a potential legal fight with an employer. There could be a 3rd option.

Option number 3: Not a lot of people have talked about it. I believe that this is possible—which is that you agree on a one time basis with your employer. This is a “Without Prejudice” basis.  Essentially the agreement is between the 2 parties—employer and the employee in writing and is on a Without Prejudice basis—that considering the circumstances, the health environment, the outbreak of Corona virus we both are agreeing that there is no change in the employment terms. This is one time exception because of the dire circumstances of the situation.  The employment rights are not changing and therefore you are preserving your rights.  You are saying that, “you the employer do not have any future right whether it’s because of a pandemic or another issue but my employment contract is not changing. I’m retaining the right. I’m just making this one time exception.  I believe that if there is a written agreement between employer and employee that agreement will be honored by the court.

Let’s talk about entitlements. Essentially you have 2 kinds of entitlements; one is to apply for Canada Emergency Response Benefits and I have a separate lecture on that.  You get $2000.00 per month up to 16 weeks.  That lecture was posted yesterday. By all means check that out.  These are the benefits that you may get with respect to the temporary layoff or permanent end of employment, and/or you apply for the employment insurance benefits which are regular benefits.  Again, your temporary layoff is up to 13 weeks in 20 consecutive weeks or 35 weeks in 52 consecutive weeks.  During this time you will get your employment insurance regular benefits. But, remember, that if at the end of 13 weeks or by 13 weeks the employer does not recall you, then essentially that temporary layoff turns into termination.  In some circumstances, there are specific conditions in the Employment Standards Act where the temporary layoff could be up to 35 weeks.  For those employees if the employer does not recall them within 35 weeks, then that temporary layoff turns into termination of employment. But with respect to applying for benefits, I’ve posted two separate lectures. By all means check those out.

I hope that this clarifies the rights and obligations with respect to temporary layoff and what are some of the things that employees can do to preserve their rights.  Or, if the employer does have the right, how do you proceed with respect to obtaining your benefits. Now one final point that I wanted to add was that in certain circumstances even though the employer may not have a right to terminate, the government can enact a statute or enforce a statute such as the Emergencies Act, which basically orders the employers to shut down their business. Now that decision is really not made by the employer.  It essentially is flowing from the application of a specific legislation and in that case then even if there is no right in this specific contract, the employer by virtue of that statute may still be able to temporarily lay you off. Hopefully this clarifies the issue.

You’re welcome to post your questions and I’ll try to answer as soon as possible.

Thank you for watching.

The Recent Cases Regarding Arbitration Clauses in Consumer Contracts

Monday, October 12th, 2020

This is the third lecture on the topic of arbitration. It discusses three latest cases (including one from Supreme Court of Canada and another from Ontario Court of Appeal) dealing with the issue of mandatory arbitration agreements in consumer contracts. Most of us are affected by mandatory arbitration agreements in our everyday purchases, but we are not even aware of this issue.

The links to the three cases is provided below:

TELUS Communications Inc. v. Wellman, 2019 SCC 19: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17654/index.do

Heller v. Uber: https://www.canlii.org/en/on/onca/doc/2019/2019onca1/2019onca1.html

Evans v Mattamy Homes Limited, 2019 ONSC 3883: https://www.canlii.org/en/on/onsc/doc/2019/2019onsc3883/2019onsc3883.html?resultIndex=3

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

 

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

So far we have posted 2 lectures about arbitrations. The first lecture was about arbitrations in general, how arbitrations are scheduled and what is the framework of an arbitration. The second lecture was about arbitration clauses in consumer contracts.  In that lecture we explained that all of us, in some ways, are affected by arbitration clauses in so many contracts that we enter into and we don’t even know that arbitration clauses are applicable to our circumstances. We then argued that arbitration clauses in consumer contracts are unfair and problematic.  In today’s lecture we will discuss 3 cases—recent cases in Canada—that discuss the issue of arbitration clauses in contracts.  Then we will explain how Canadian courts have dealt with arbitration clauses in these decisions.

We begin our lecture with our usual disclaimer that this lecture is not legal advice. If you have any specific questions, regarding your issues you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

The 1st case we will talk about is Telus v. Wellman.  The case was decided by the Supreme Court of Canada in 2019. The 2nd case will be Heller v. Uber.  This was decided by the Ontario Court of Appeal in 2019 and was appealed to the Supreme Court of Canada. We will discuss that as well.  Then finally there was also a case from Ontario Superior Court of Justice in 2019, Evans v. Mattamy Homes.

The story of Telus v. Wellman case is that this was a class action lawsuit that was brought against Telus by approximately 2,000,000 users.  Their essential allegation against Telus was that, Telus was overcharging them, overcharging all of these customers without disclosure.  How Telus was allegedly overcharging was that it was rounding up the calls to the next minute. For example, if you had a call which lasted 2 minutes and 45 seconds, Telus rounded it up to 3 minutes and charged you and other customers for that additional amount of time which was not part of your call. This was not disclosed to the customers and therefore this class action lawsuit was brought.

All of the Telus agreements with subscribers (with individual customers) had a mandatory arbitration agreement. Telus brought a motion before the court and argued that the courts do not have jurisdiction to deal with all of these complaints. They should not be part of a class action.  All of these individuals need to attend before an arbitrator separately. This was further complicated because Telus argued that there were 2 kinds of users out of these 2,000,000 users. Some of them were individual consumers and some of them were commercial consumers.  Why was the distinction made?  Because there is a legislation in Ontario called Consumer Protection Act.  That legislation basically provides that mandatory arbitration agreements in contracts, such as the one between Telus and its consumers, was unlawful.  Therefore, the mandatory arbitration agreement would not apply to ordinary consumers.

Telus brought this motion before the Superior Court of Justice in Ontario.  They lost that motion.  The judge reviewed the case on the basis of the Arbitration Act and basically decided that the 2 matters, i.e., the matters with respect to the consumers generally and with respect to the commercial or business consumers were related and they should be part of the same class action.  The judge made that decision by applying a specific provision of the Arbitration Act in interpreting that provision in a certain way.  It will be interesting for you to review the Superior Court judgement to understand how the judge made that decision. I will provide the link for the case below in the description of this video.

Now, Telus lost at the 1st instance at the motion.  Then they appealed at the Court of Appeal level. They lost at the Ontario Court of Appeal again.  Then they appealed to Supreme Court of Canada and interestingly they won at the Supreme Court of Canada. The decision at Supreme Court of Canada was quite divided.  There were 5 judges who ruled in favor of Telus and there were 4 judges who dissented.  It is an interesting discussion for you to read that case and understand how the Supreme Court of Canada was grappling with this issue. The majority (5) of the judges in Telus v. Wellman basically held that the Arbitration Act was enacted by the legislature and it dealt with the arbitration issues.  It allowed for the bifurcation of certain cases—where some part of the case could be argued before a court and some could be argued before an arbitrator.  If that can be done, then that should be done.  In this case, the consumers who were exempt from mandatory arbitration agreement because of the application of the Consumer Protection Act, should be able to proceed with a class action lawsuit before the courts.  But the other consumers who were not ordinary consumers should not be allowed and they should go to arbitration.

The fundamental reason why the majority judges came to that conclusion was that they believed that the language of the Arbitration Act was quite clear.  The discretion that was awarded to the courts was quite limited.  The discretion could not be exercised in the way the lower courts had decided on this case. The dissenting judges, had a different view.  Obviously, they disagreed with the 5 judges. The dissenting judges basically stated that the Arbitration Act allowed that level of discretion for the court.  And for the interest of justice and for public policy reasons, the court should use that discretion and then allow the class action to proceed for all of the subscribers. But I would suggest that you read this case and see the discussions between the justices of Supreme Court of Canada on this topic.

Let’s talk about Heller v. Uber. This was also a class action lawsuit.  It was brought against Uber by Uber drivers, who basically argued that they were employees and not independent contractors of Uber.  If that was correct, then Uber had violated the Employment Standards Act, in so many ways. All of these contracts that Uber drivers had with Uber had mandatory arbitration agreement.  It stated that you will have to bring an arbitration in Netherlands and the laws of the Netherlands would apply. Again, the issue was whether the courts have jurisdiction on this matter or not. When Uber brought its motion before the Superior Court of Justice, they were successful at that motion and the judge ruled in their favor—that yes, based on the application of the Arbitration Act and by reviewing the individual contracts the judge agreed with Uber that the court had no jurisdiction.

Then the matter was appealed to Ontario Court of Appeal which overturned the motion judge’s decision and basically ruled that Uber had violated the Employment Standards Act because the arbitration agreement, the mandatory arbitration agreement in the contract was in itself a violation of the Employment Standards Act.  That was one reason why the arbitration agreement would not be of help.  Secondly, the judges stated that the arbitration agreement was unconscionable because it required the individuals to spend money for the arbitration.  The cost was much higher for them and for that reason the agreement was unconscionable. When Uber was unsuccessful at Court of Appeal in Ontario, they then appealed to the Supreme Court of Canada.  That appeal was heard back in November of last year.  We are expecting the decision from the Supreme Court of Canada any time now.  It will be interesting to see how the Supreme Court of Canada rules on this issue.

The final case we’ll talk about today is Evans v. Mattamy Homes. This was also a class action lawsuit.  It was brought by various purchasers of Mattamy Homes.  All of their Agreements of Purchase and Sale had mandatory arbitration agreement. The case was also argued in 2019.  Mattamy Homes then brought this motion to argue that these consumers, these purchasers of homes did not have a right to go to court and bring a class action lawsuit.  The only option they have was to go to arbitration.  In this case the court held that the agreement was not unconscionable and the mandatory arbitration agreement was upheld and those individuals’ cases were thrown out of court.

As I said in the end of my last lecture, that the way the 1st world, the Western world has treated mandatory arbitration agreement, is quite different. In most of Europe, in Australia and in New Zealand, also I believe the mandatory arbitration agreements in consumer contracts are unlawful. In the United States they are prevalent and they are enforced.  Canada is now grappling with this issue.  Increasingly consumer contracts have this arbitration, mandatory arbitration agreement, which a lot of us are not even aware of.  The courts are now grappling with the issue whether those arbitration agreement should be enforced or not.  So far the courts have ruled in the favor of the mandatory arbitration agreements but we will see because the law will continue to develop on this matter.

Thank you for watching.

The Tyranny of Arbitration Clauses in Consumer Contracts

Monday, October 12th, 2020

Arbitration clauses affect most everyday people in their daily purchases/subscriptions. This lecture argues that arbitration clauses in consumer contracts are fundamentally unfair and problematic.

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

 

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

In our last lecture we talked about arbitrations in general and we explained arbitration clauses in various contracts. We also discussed arbitration clauses and consumer contracts and we stated that, we find that there is a big problem with arbitration clauses in consumer contracts.  These are fundamentally unfair to consumers. In today’s lecture we will explain why these arbitration clauses are unfair in consumer contracts.

Please note that this lecture is not legal advice.  If you have any specific questions, regarding your issues, you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

In today’s lecture will talk about 3 things. 1st of all I will explain what are consumer contracts.  Then we’ll talk about the normal dispute resolution process that is available in Canada (in Ontario) and in most of the democratic world.  Finally we will talk about what are some of the issues with respect to arbitration clauses in consumer contracts.

  • Consumer Contracts are essentially contracts between one entity, one big supplier, one big developer, one big service provider, on one side and many, many, many consumers on the other side. For example, if you are a subscriber to Amazon then you are this one subscriber let’s say ‘A’ and you have an individual contract with Amazon which will be a consumer contract.  Like you many, many hundreds of thousands of people (millions of people) will have a similar contract with Amazon. Essentially it’s the same contract which is prepared by Amazon and when you agree to the terms of the uses of Amazon’s product or delivery process, then you are essentially agreeing to that contract. Each one of us has an individual contract with Amazon or any other party that we are engaging in business with and that contract is considered binding.  That contract has in it an arbitration clause or is going to have an arbitration clause in it and which is what we believe is problematic.
  • In a normal dispute resolution process in Canada, if you as an individual have a case, a dispute with another party, then you can simply go to courts or tribunals and have your case argued there and get the decision from the court. If you have a case that is common with multiple users, for example, hundreds or thousands of users have a common issue with one party on the other side, then you can bring a class-action lawsuit and have all of these cases combined in one case and let the court decide the fairness of that case (of the dispute in question). Class actions are hugely, hugely important in a democratic society. We will have a separate lecture on class actions, but briefly speaking you can understand class actions in this way.

Let’s say that if you have a dispute with your telephone provider or service provider, which is worth $20.00 dollars.  The nature of the dispute is such that it’s not only you who has the same issue but 2,000,000 other people or 3,000,000 other people have the same problem because of the way that telephone provider is dealing with that specific service. As an individual if the dispute is worth $20.00 it may not make sense for you to go to court and have that case argued on an individual basis—it will cost you more, it will take a lot of your time, it will take a lot of courts time and so it wouldn’t make sense. But if 3,000,000 people have the same issue which is worth $20.00 each, then it makes sense to have all those issues combined together in one case and let the court decide. That is what a class action is.  Class action is a very important tool in a democratic society because a lot of people who have smaller issues with one entity, they can have those issues litigated in a cost-effective manner and in a manner that can apply to a large number of people. The results can apply to a large number of people. That is sort of the normal process, in our Canadian system which is how disputes are resolved.  Some of the key features, of our dispute resolution process is that it is a public process. You can walk into any court sit down, see the process unfold and so the idea of justice not only to be done, but to be seen is important and that is why it is a public process. Arbitral process is not at all a public process.  It is a confidential process.

Now again the 2nd item that you want to remember about our judicial system is that it’s subsidized by the state. We pay taxes which fund our judicial system. We have courts that are available to us for free, we have judges who are available to us for free, court staff who are available to us for free. With respect to the judicial system, we pay a minimal cost for the resolution. Yes, we have to pay significant amount of monies to our lawyers, but that you will have to pay in an arbitral process as well. But the judicial process itself is subsidized by the state in a democratic society and in Canada as well.

Another item of the judicial system is that it plays a significant role in the development of law. Many people who understand how judges make decisions, they understand that judges are not just applying the law, by interpreting different legislation, by applying it to different circumstances, they’re actually developing the law. In some cases there are new causes of actions that are created by judges because of the unfairness of a case that they may be dealing with. This is not something that may be available in an arbitral process. Also judicial system deals with public policy matters. That is one of the important functions of our appellate courts and Supreme Court of Canada that they deal with public policy issues all the time.  Then finally access to justice is part of the mandate of the judicial system. We can argue that our judicial system has a lot of problems and it is not performing all of these functions to the satisfaction of the general public, but that’s a separate debate. The question here is that, whether the arbitral system that you may end up subscribing to unknowingly, is that a better system than the court system and I submit, that it’s not.  It’s actually for the consumers, for the ordinary people, largely problematic.

  • Okay, so what are some of the issues with the arbitration clauses in consumer contracts? Number one as I had mentioned in a previous lecture you have no right to go to court. The only place that you can go is before an arbitrator.  You cannot appeal that decision.  There is no oversight to that arbitral decision or very, very minimal oversight. The courts will try to be hands-off with respect to arbitral decision. Secondly, you have no right to have a class action. I will be very surprised if an arbitral agreement will allow for class actions, because the whole idea is to make it difficult for people, for ordinary consumers, to bring these cases against the providers.  There is no class action lawsuit that you can bring together.  Then most importantly, arbitral agreements in consumer contracts are not negotiated.

If there is a dispute between Microsoft and Amazon or Microsoft and Apple and they come to an agreement that they should resolve the dispute by arbitration, that’s fine.  But in consumer contracts you cannot. When you are subscribing to Amazon or when you’re subscribing to a Fortnight or any other service provider or buying any product you cannot say to the other side, say to Amazon that I’m okay to subscribe I’m willing to pay the money but, I’m not agreeing to the arbitration agreement in this contract.  That option is not open to you. You will simply not be able to subscribe.  It’s simply a one-sided contract which is enforced simply because you accept the terms and conditions and you don’t have a choice, you don’t have a say in this matter.

I’ve also mentioned that arbitration agreements end up costing more to the consumers because you will have to pay for the arbitration. Whereas in the court system you’re not paying for the judges and so some people argue that arbitration will be—considering the overall cost—cheaper, I completely disagree.  I believe that arbitration costs will be significantly higher. In arbitration each consumer if they have a dispute even though the dispute may be common to 20,000,000 people, each consumer will have to prepare his own case separately, bring it before the arbitrator and argue it. It is sort of divide and conquer policy. Each defendant on the other hand will have a similar defense to each case. If you have an issue of $20.00 worth based upon a policy of the telephone service provider or any other party and the other person will have a similar case—but these 2 people will not be working together in a class action lawsuit.  They’re working separately. Whereas the defendant has the same defense or similar defense for each of the cases.  It is much easier for the defendant to defend it. There’s also a problem that all of these cases, 20,000,000 of these will be going to the same arbitrators or a few arbitrators.  There is a concern that the process of decision making may not be fair.

I previously mentioned there’s lack of transparency in arbitration process. First of all it’s confidential so other people, who are not party to the arbitral process they may not know what the dispute is, they may not know what the decisions are.  Within the arbitration process the arbitrators, generally, do not provide detailed reasons for every single decision that they make in that arbitral process. There is relatively more lack of transparency in arbitration system, than in courts.

Public policy is not the main concern of arbitration process.  It is a dispute between 2 specific parties and that’s what they’re going to focus on.  In the interest of justice it is important that the arbitral process for the consumer contract is something that should not be in the arbitral system.

What you want to understand is that in most of the Western world (in most of the 1st world), especially in Europe, the arbitration agreement in consumer contracts are unlawful.  The main problem of arbitration agreement in consumer contracts exists in the United States and to some extent and increasingly so in Canada. In the United States, most of the arbitration agreements whether they are with consumers or whether they’re with commercial entities—they’re all enforceable. Now there are few cases (mostly in California) where the courts have held that those arbitration agreements were unconscionable but then those are the cases on the fringes.  The majority of the cases in the United States—the arbitration agreements are enforced.

Now, Canada has a similar issue. In Canadian courts, in Canadian law there is an Arbitration Act, as I mentioned in Ontario, which allows the parties to have the arbitration agreements and take away their ability to go to court.  The arbitration agreement does not distinguish between consumers or any other person.  Although there is a Consumer Protection Act that does provide some protection from the arbitration agreements in consumer context, but very, very limited.

In the next lecture we will talk about how the Canadian courts have been dealing with arbitration agreements.  I will talk about some of the latest cases and then we’ll discuss this matter further.

Hopefully this gives you some understanding of the arguments against arbitration agreements in consumer contracts, which will help you in making decisions with respect to your own cases.

Thank you for watching.

Dispute Resolution Through Arbitration

Monday, October 12th, 2020

This lecture explains the basic concept of arbitration and why it is important for everyday people to understand it.

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

 

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

In today’s lecture, we will talk about arbitration. Most people have heard of arbitrations but they don’t have a clear understanding of what arbitrations are about. How are arbitrations scheduled? Are they even relevant to everyday people? A lot of people have this misunderstanding that arbitrations are something to do with large commercial entities—which is not correct. Today’s lecture is going to provide a fundamental understanding of arbitrations. Then the next lecture, I will explain why arbitrations are hugely important for everyday people with respect to consumer contracts.

Please note, that this lecture is not legal advice. All of the opinions in this lecture are my personal opinions and you don’t need to agree with them. If you have any specific questions, regarding your own issues, you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

Today, I will talk about (1) what is an arbitration; (2) what are some of the advantages and disadvantages of arbitration and we’ll talk briefly about (3) different kinds of arbitration agreements.

(1) Arbitration is essentially an alternative dispute resolution process. The courts have very minimal role in arbitration. Alternative dispute resolution, as the name implies, is a process which is alternative to our regular judicial system. Disputes in our system, legal disputes in our country, are usually resolved by courts and tribunals—that is our judicial system. But then there are processes that are alternative to that traditional approach of resolving disputes which is called alternative dispute resolution. Arbitration is one of those processes. Mediation is another process that you can have. It is important to understand that arbitration is not a court process. It is a process that is outside of the court and it is arranged by the parties to a dispute. What parties do is that parties agree to hire a neutral decision maker, which is called an arbitrator.

Most of the arbitrators in Canada are either senior lawyers or retired judges who are hired by parties as arbitrators, to hear their disputes and provide their decision. An arbitrator listens to the case, listens to the evidence and then decides a case. That decision is called an arbitral award, which is like a judgment. That decision is binding on parties. As I mentioned earlier, the courts have a very limited role in arbitration, so arbitral awards are final awards.

Most of the arbitration agreements will indicate that whatever the arbitrator’s decision is, that is final. Parties have no right to appeal. They cannot go to court and appeal that decision. They cannot ask the court to judicially review that decision. In most of the cases that is how arbitration agreements are laid out. Once an arbitrator has issued an award, if a party needs to enforce that award, they can enforce it like a court judgment. They have to file that award with the court and then that becomes a judgment. They can go and enforce it. All of these things of arbitration that happe, are based upon the Arbitration Act which is a legislation in Ontario, that governs how arbitrations are dealt with in Ontario.

(2) Let’s talk about some of the advantages and disadvantages of an arbitration process. The biggest advantage of an arbitration process is the speed with which an arbitration can be conducted. If you go to court i.e., if you start a court action, you have to file your claim, the other party files a defence, then you have to go through examinations for discovery and certain motions and stuff and it may take parties 2 years or longer to get to trial and have their disputes resolved. If they choose to go to arbitration, they could have an arbitration scheduled as quickly as in 2 months time or even faster depending upon the issues that are in dispute. Speed is one of the biggest advantages of an arbitration process—that you can get your issues resolved very, very quickly.

The 2nd advantage is that parties have huge control over the process of arbitration. Arbitration is not run under the Rules of Civil Procedure and so parties can decide—mutually agree—on what process they want to adopt with respect to that arbitration. Also because the arbitration is not bound by the Rules of Civil Procedure, the process of arbitration is quite informal with respect to the acceptance of evidence and hearing of evidence in an arbitration process. Also arbitrations are often times private. Actually, most of the arbitrations are private and confidential. Whatever the dispute is, it is not open to public and the decisions, the awards are not provided to public.

Some people argue that arbitrations have lower cost. I highly doubt it. I believe that is not correct. In my view, in majority of the cases, the arbitration will be more expensive than the court process. Remember, that in arbitration process, the parties are paying the costs of the arbitrator. A decent arbitrator in Ontario may cost you anywhere from $5000 to $10,000 or more per day. What people argue is that, the overall cost of the arbitration is less because you may not need to go through examinations for discovery and you can control the number of days that you have to go for a hearing and whatnot. But, in my personal view, I believe that the majority of the arbitrations will in the end be more expensive, more costly, with respect to a court process.

Disadvantages: In my view, cost is a bigger disadvantage for an arbitration process because you’re not relying on the public resources, the court system to have that dispute resolved. Another disadvantage of arbitration is that there is no right to appeal. In some cases it’s a good thing but in most cases, it takes away the right for a party to have that decision reviewed by a higher court. There is a lack of formal discovery process, which in some cases is a disadvantage. Also there is a bit of a more lack of transparency in arbitration process. The courts, the judges, are required to provide reasons for why they have arrived at certain conclusions. In an arbitrator’s case that is not true in all of the cases. Many of the interim decisions that the arbitrator may make may not be supported with reasons and so there is relatively less transparency in arbitration process. Costs are higher as I’ve said, but the biggest issue with arbitration, in my view, with respect to consumer issues is the access to justice. The lack of access to justice in arbitration, in my view, is a huge problem with respect to consumer issues which we will talk about in the next lecture.

(3) Let’s talk about arbitration agreement. By arbitration agreement what I mean is how parties get to an arbitration. How do parties end up in arbitration as opposed to a court? There are 2 ways that parties end up in an arbitration. I’ve said the 1st option is the “post-dispute arbitration” which essentially means that parties have a dispute, they realize that they have a dispute and now they have a choice to make, whether to go to court or tribunal depending upon the dispute or to hire an arbitrator and go through the arbitration process. Post dispute means, that the decision to go to arbitration is more of a voluntary decision. Parties look at the pros and cons of different options of this dispute solution and then they decide mutually that the best approach for them is to go to an arbitration. They want a speedy resolution, they want to get the decision made quickly in a matter of months, so they can get on with their businesses as usual.

The other one is called the “pre-dispute arbitration” which is a mandatory process. Pre-dispute arbitration essentially is that parties have already agreed to a contract in which they have agreed that if there is going to be a dispute between the parties the only way they are going to resolve that dispute is by going to an arbitration and they cannot go to a court. That is sort of a mandatory agreement to go to arbitration even before any dispute has arisen.

The most problematic example of mandatory arbitration agreements is in consumer contracts. A lot of people don’t realize that in a lot of their consumer contracts, they’re already bound by mandatory arbitration agreements. Which means, that if they have a dispute with that provider on the other side, they cannot go to court. The only option, they have is go to an arbitrator.


For example, home developers in most of the cases, whether you’re buying a house from Mattamy or another developer—when purchasing a new house in the Agreement of Purchase and Sale there is (in 99 percent of the cases that I know) an arbitration agreement clause that basically says that you the buyer, you the purchaser if you have any issues with the developer, you cannot go to court. You have to hire an arbitrator, pay the cost of the arbitrator and have that dispute resolved. If you buy stuff from Amazon—which we all do, if we have a dispute we cannot go to court. In Amazon there are certain circumstances in which you can go to Small Claims Court, but you have to go to the arbitral process. You have to hire an arbitrator and have your disputes resolved. I briefly looked at the Amazon’s arbitration agreement and I believe that in small claims matters you can still go to court and also you don’t need to pay the cost of the arbitrator unless the arbitrator finds that the issues that you have raised was frivolous.

There are certain things good things in that agreement too. Also if you purchase stuff like online games and stuff like that, you will find if you read the fine print of the contract it will say that all of the disputes are subject to arbitration. A lot of employment contracts that I see have this arbitration clause that employees will not be able to go to court and have the matter resolved in a court process. They will have to go through the arbitration process.

Therefore, it is important for everyday people to understand that a lot of consumer deals that they have, may have a mandatory arbitration agreement in it, which takes away the consumer’s rights to go to court and have their matter heard by a judge in the court system. They will have to incur (in most cases) the cost of arbitration which as I mentioned was going to be significant. They will not have the right to commence class action proceedings—join a number of causes together in a class action and have that matter resolved by the courts. Each party will have to go through separate arbitration with respect to their case. There are huge problems in my view with arbitration agreements (mandatory arbitration agreements) and consumer contracts which I will discuss in the next lecture.

Thank-you for watching.

UPDATED – Coronavirus and Employment Insurance Benefits

Monday, October 12th, 2020

(Please check the lecture titled “Update April 16: Eligibility REVISED – Canada Emergency Response Benefit (CERB)” posted April 16, 2020, which has the latest update on eligibility for CERB.)

This is an updated video on the same topic. If you have watched it earlier, you may skip forward and review additional information at 6.00. This relates to the government’s latest announcement regarding illness benefits to self-employed and other individuals who, otherwise, may not qualify for illness benefits.

This lectures provides a basic understanding of different kinds of employment insurance benefits that may be available to employees whose employment is affected by Corona Virus. For details, please visit: https://www.canada.ca/en/department-finance/news/2020/03/canadas-covid-19-economic-response-plan-support-for-canadians-and-businesses.html

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

 

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

Today’s lecture explains some of the options with respect to employment insurance benefits that may be available to various employees, due to the recent outbreak of Corona virus.

Please note that this lecture is not legal advice. If you have any specific questions, regarding your issues, you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

We’ll talk about 4 kinds of benefits that may be available under the Employment Insurance Act:

1st is illness benefits;

2nd is temporary layoffs;

3rd is care giving benefits; and the

4th is work sharing program.

 

  • With respect to illness benefits: (a) first you need to make sure that you are eligible for illness benefits under the Employment Insurance Act. What are some of the criteria that is for the illness benefits: (i) Number One you should be working for an employer that pays employment insurance premiums for you.  (ii) Secondly you are unable to work due to injury, illness or quarantine.  (iii) Number three, your weekly earning (the regular weekly earning) is decreased by more than 40%.  If you’re not working at all, then obviously the weekly earning is 0.  (iv) And, then you have 600 insured hours of work in the last 52 weeks. It is important to know that the time period to calculate is last 52 weeks.

For example, if you are one of the people who have just returned from parental leave or maternity leave and you do not have sufficient 600 insurable hours in the last 52 weeks, then you will not be eligible. Now there are 2 scenarios: one is the quarantine scenario. If you are in quarantine because of your own trip, recent trip or exposure to coronavirus or because of a family member, then you are able to get 2 weeks of employment insurance benefits through, E.I. illness program.  For that you do not require a doctor’s note or medical certificate.  But, if you need to extend the quarantine for longer than 2 weeks, then you would require a certificate from a physician.

Now with respect to illness, if you are ill or you have to stay in quarantine for longer than 2 weeks, then as I indicated, you will require a medical certificate. The illness benefits under the Employment Insurance Act can be up to 15 weeks and the income that you earn during the illness program is 55 percent of your income—up to a maximum of $573.00 per week. It comes out to be about, if you’re earning about $52,400.00 annually, then that’s what you get for $573.00 per week, but not more than that.

  • Let’s talk about temporary layoff. A temporary layoff happens when there is shortage of work, for whatever reason at your workplace and the employer is temporarily laying you off. Your employment is not terminated. Temporary layoff is not the same as termination of employment.  So an employee can be laid off temporarily from his or her employment for up to 13 weeks in 20 consecutive weeks.  That is one scenario or it could be longer than that.  It could be up to 35 weeks in 52 consecutive weeks.  There is specific requirement to be entitled to 35 weeks of temporary layoff and those are stipulated in Employment Standards Act.

Now just as a side note, not every employee can be temporarily laid off. An employer does not have an automatic right under Employment Standards Act to temporarily lay off employees. That right needs to be specified in the individual employment contract of that employee. If your employment contract does not stipulate that your employment can temporarily be laid off, then your employer does not have the right to temporarily lay you off and your temporary layoff maybe considered termination, depending upon the circumstances.

With respect to eligibility, it’s quite similar to the eligibility for regular benefits.  Obviously you should be working for an employer who pays premium on your behalf for employment insurance benefits and then your insurable hours can range from 420 to 700 hours depending upon the area that you live in. These are different hours.

  • The third kind of benefits are caregiver benefits. Now there are 3 kinds of caregiving benefits; (i) family caregiver for children, (ii) family caregiver for adults and then (iii) compassionate care giver benefits. For family caregiver for children, the child has to be under 18 years of age. The person should be either critically ill or injured. Under certain circumstances of Corona virus, the person can be considered critically ill. The benefits can be up to 35 weeks and then the person, you don’t have to be related to that person who is ill, as long as that person considers you family and you don’t need to be living with that person to be a family caregiver. With respect to family care benefits for adults. Now the adult has to be 18 years or over.  The benefits are up to 15 weeks and again you don’t have to be related to that person. With respect to compassionate care, this applies only if you are looking after someone for their end-of-life care and age is not relevant and the benefits are up to 26 weeks.
  • The last category is a work sharing program. This is a specific program under the Employment Insurance Act; there is a 3 way agreement essentially in this program. The agreement is between employer, employee and Service Canada. All 3 of the parties have to agree to work sharing program. The essential goal of this program is to avoid temporarily laying off employees.  Essentially in this program if you are approved / if your company is approved for work sharing programs and you as an employee have signed up for the program, then essentially you work reduced hours and you share all of the work with other employees who are in that program. There is more detail about this work sharing program that I will include in a separate lecture.

Hopefully this gives you a sense of some of the benefits that are available under Employment Insurance Act. Obviously there are specific requirements with respect to each category of benefits so please make sure to check the Employment Insurance Canada website, the Service Canada website or contact their phone number.  In the following lectures I will try to cover the Corona Virus issues with respect to Employment Standards Act, Privacy Act and human rights issues. I also wanted to mention some of the measures taken by Government of Canada with respect to illness benefits. 

There is a posting on the Government of Canada website, which is entitled “Canada’s Covid Economic Response Plan”. You can Google it. In here you will see that, the Canadian government is introducing emergency care benefits, which will be introduced. The legislation is still not approved, but it will be done hopefully by April and under these emergency care benefits people will be entitled to $900.00 bi-weekly for up to 15 weeks. This is a flat payment.  This would apply to people who are self-employed and people who otherwise will not qualify for sickness benefits. Similarly for individuals, including self-employed, who are taking care of a family member who is sick with covid and they are not entitled to E.I. sickness benefits or people who will not earn any employment income because they are taking care of their children who are at home due to school or daycare closures.

Please bookmark this page and keep an eye on it. It will have further information about this and you will see that emergency care benefits are expected to be approved by early April 2020.

Thank you for watching.

Coronavirus and Right to Refuse Work in Ontario

Monday, October 12th, 2020

With respect to Corona virus, this lecture briefly explains under what circumstances can an employee refuse work and the procedure to follow.

Occupational Health and Safety Act: https://www.canlii.org/en/on/laws/stat/rso-1990-c-o1/latest/rso-1990-c-o1.html

https://www.ontario.ca/document/guide-occupational-health-and-safety-act/part-v-right-refuse-or-stop-work-where-health-and-safety-danger

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

 

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

In today’s lecture we will discuss under what circumstances can an employee refuse to attend work if the employee believes that he or she will be exposed to coronavirus at work and what is the process of refusing to work.

Please note that this lecture is not legal advice. If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

We will talk about an employee’s right to refuse work, under the Occupational Health and Safety Act in Ontario. We will discuss which employees cannot refuse to work and what the procedure to refuse work is. The right to refuse work arises under Section 43(3) of the Occupational Health and Safety Act. This section provides different circumstances in which an employee can refuse to work.  Because we’re discussing only coronavirus, we will focus on one subsection, which essentially says that if the physical conditions of the workplace or part thereof, in which an employee is attending work or is expected to work and that physical condition can endanger the employee or another worker; then in those circumstances the employee can refuse to work. Based on this condition, it can be stated that if an employee believes that by attending work, by attending place of employment, the employee will be exposed to Corona virus and that could be a situation which is covered under this particular subsection and may allow the employee to refuse work.

Who are some of the employees who cannot refuse work?  Section 43(1) specifies that these employees are members of the police force, firefighters, employees who work at a correctional facility or institution and employees who work in a health-care related environment—whether it be hospitals, sanatoriums, long-term care facilities, rehab facilities, mental health institutions, ambulance services, first aid clinics, etc.; also employees who work in ancillary services, with respect to health-care facilities. For example, food services, laundry services, technical services, power plants, etc. If employees work there, then they are not permitted to refuse work.   This is primarily because either the nature of their work is inherently dangerous—in the sense that it may expose them to the risk, that is the reason for their refusal to work or that by refusing to work the health and safety of other individuals may be at risk. And therefore these employees are not allowed to refuse work.

Let’s talk about the procedure for refusing work. There are two stages to refuse work. Let’s talk about stage one. In stage one, the worker will report the safety issue, the concern to the employer. The worker during that time, while the employer is investigating the issue, will remain in a safe place. For example; if there is a place within the workplace that the worker could be safe, then that is the place where the worker will remain. If not, then the worker will stay at home. The employer will investigate and resolve the workers concern and if the issue is unresolved then inquiry goes to stage two. But if the matter is resolved, then the worker returns to work. Now please note, that while the employer is investigating and resolving the issue in stage one and if the worker is staying at home or absent from work because of this issue, then worker is paid—considered a worker who is attending work and he or she needs to be paid the normal wages, as if the worker was attending work.

With respect to stage two: if the safety issue is unresolved, then either the worker or the employer or an agent of employer can contact the Ministry of Labor. The Ministry of Labor will send an Inspector to review the workplace.  Then the inspector will determine whether the safety issue is resolved or not.

The process of refusing to work is rather straightforward, but its application is a bit complex because it depends upon the specific circumstances of that workplace. Generally speaking what you can keep in mind is to assess what kinds of measures the employer has taken to protect its workforce. For example, if an employee or a worker can work from home or remotely, has the employer allowed its employees to do so? Has the employer minimized meetings and conferences to minimize workers exposure to corona virus?  Has the employer instituted good workplace policies to protect its workers? For example, ensuring that people who may have potential exposure are quarantined at home.  People who have exposure are off from work and not exposing other employees. In circumstances where you are unclear, whether you may be allowed to refuse work or whether your employees may be allowed to refuse work, it may be a good idea to contact the Ministry of Labor to seek their position with respect to your work environment.

Thank-you for watching.

Employee Rights in Ontario on Sale of Business

Monday, October 12th, 2020

This lecture broadly explains employee rights when businesses undergo sale/acquisition. This lecture is also helpful for businesses in understanding their obligations in the process of purchase/sale, so they could make informed decisions.

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

 

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

Today, we will talk about employee rights, when an employer is going through a transition—being acquired by another company, selling their business—what happens to the employees’ rights? This lecture is also helpful for businesses that are selling their business or acquiring new business—to understand what could be the employee rights that may be affected.

Please note that this lecture is not legal advice. If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or the law society of Ontario for a referral.

The sale of business can happen in 2 ways, one is called share purchase and the second is called asset purchase. The term sale is defined quite broadly in the Employment Standards Act. It could be the sale of the business, it could be the leasing of the business, in some circumstances even sub-contracting may be considered a sale for the purposes of Employment Standards Act. It is generally the disposition of business, from one owner to another in some way.  It doesn’t have to be from company to company. It could be from company to an individual owner.  There are multiple variations. But the sale or purchase of the business can happen in 2 ways. Share purchase and asset purchase. We’ll talk about both and then we’ll talk about a third category called common employer. We’ll explain what kind of employers are considered common employer and what are the implications for employees in that.

Let’s talk about Share Purchase. Share purchase, obviously means that a company, one person or entity acquires the shares of another company. It could be all of the shares, could be some of the shares, but essentially it’s a share in that business. What happens in that case—there is no change for the employees because the company, the corporation remains the same. If there are any changes that need to be brought, if the new owner wants to make the changes to the terms of employees employment, then there has to be something called Fresh consideration. A fresh consideration means there has to be some give and take between the employer and the employee for the change of the employment structure to take place. For example, if the new owner wants to reduce the salary of an employee, then they have to give something in return. For example, more vacation or a bonus or something like that. But whatever the change may be, it does require a fresh consideration otherwise the change will not be enforced.

Now let’s talk about Asset Purchase. In asset purchase, essentially, one company is acquiring certain assets, maybe all assets—but certain assets of another company. For example,

 if the seller is a manufacturing facility and they have multiple lines.  The purchaser is buying only one product, one line, then that is the asset that the purchaser is acquiring. When the purchaser buys the assets, then the purchaser may offer employment to the employees of the seller or may not.  If it offers employment, it could be on the same terms as the employee was employed at the seller or could be on different terms. If the offer is made, then an employee has two choices, either to accept the offer or to refuse the offer. If the employee rejects the offer, indicates that it does not want to work for that employer, then, that will trigger determination rights for that employee and the seller company will be responsible for paying all of the termination rights for that employee.

On the other hand, if the employee accepts the offer of employment by the purchaser (by the new employer), then this will be a new contract that will take effect. Whatever the terms in those contracts are, those will be the terms for the future relationship—except for this—there are certain rights from the seller that continue to be enforced for that particular employee.  What are those rights? These are important ones: employment with the seller will be deemed employment with the purchaser, for calculating employees length of service or period of employment. For example, if the employee had worked for the seller for 10 years, then based on Employment Standards Act, this particular section, those 10 years will be considered 10 years with the purchaser, as if the employee was working for the purchaser for the last 10 years.  

Why is this important? Because this helps with so many Employment Standards Act rights that are dependent upon the length of your service. For example, vacation. If you have a longer service you may be entitled to more vacation. You have to get your vacation after you have completed one year—that is how it starts. Then pregnancy leave rights are dependent upon the length of your service, parental leave rights, critically ill child care leave, terminations rights, as we know, the longer your services the more termination pay you get.  Similarly, severance pay rights are dependent on the length of service. What the legislature has done is ensuring that employees are not affected in some ways, at least, not all of the ways, but in some ways because of the sale of a business certain rights remain intact. Once the employee accepts the offer of employment with the purchaser, these rights are automatically followed through whether they are indicated in the contract or not they are given and they will remain in force.

There is one exception to this and that is if there is more than 13 weeks of gap between employment between the seller and the purchaser. If your last day of work with the seller was ‘X’ and then you get hired by the purchaser after 13 weeks (after more than 13 weeks), then these rights are not available.  Then your employment will be considered fresh employment/new employment and you will not have any rights coming from the seller.

There is a third category of this transition which is called common employer. Essentially, in this situation there are two ways to consider this. Common employer happens when an employer is structuring his businesses to get some tax advantages.  For example, it’s one employer, one company but it has created 3 or 4 different companies to have some tax advantages of how they structure their business. But, essentially, all of them are doing related business. In Employment Standards Act the section that deals with this, that considers related activities or business between all of those employers. If they are related, if their businesses are related, activities are related then they will be treated as one employer with respect to the employment law obligation.

Similarly, in common law it is called the doctrine of common employer and in that case the test that the court applies is called degree of legal commonality between employers. What the court considers is whether the employers have same offices, whether they have similar management structure, whether they have same website, whether they have same suppliers, same H.R. staff, same accounting staff, things like that—to figure out whether these businesses have commonality between them.  If they do, then the rights and obligations of the employees are given to all of the employers together. It’s considered one employer. All of these employers, if there are more than one, they will be considered jointly and severally liable to the employee for the employment law obligations.

This helps in so many ways because a lot of times you will see that one employer changes its corporate entities, now it’s a different name, now the company is changing to a different company, but the essence of the business, essence of their operations is the same.  The employees are essentially doing the same work in the same circumstances and what not.  In those cases, what is ensured is that the employees rights are not affected.

Hopefully this gives you a broader understanding of your rights if you are an employee and your company or businesses are going through some transitions or have gone through some transition so you can understand what your rights are. These are also important for businesses which are selling their business to another company or purchasing someone’s businesses, to understand that their employment law obligations that they may have not thought about and that are enforced regardless of what their contractual agreement may be between the purchaser and the seller.

This is a very broad explanation of the sale of business.  There are many complications involved in this process but hopefully this gives you an overview of the rights of an employee in the scenario.

Thank-you for watching.

Which Employees Are Not Entitled to Overtime Pay in Ontario

Monday, October 12th, 2020

Many employees (and employers) are not aware of employees’ entitlement to overtime pay in Ontario. This lecture explains these basic rights and focuses on employees who are exempt from receiving overtime pay.

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

 

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

Many many employees in Ontario have no idea, whether they are entitled to overtime pay based upon their employment or not. We have posted, I believe 2 lectures on this topic which explain the fundamental principles of overtime pay. In this lecture we wanted to dig a bit more deeper and then explain to you, which are the employees who are exempt from getting overtime pay, or who have different rules that may apply to their situation with respect to overtime pay.

Please note that this lecture is not legal advice.  If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

 We will explain to you the basic entitlement for overtime pay. We will also explain some of the misconceptions people have with respect to overtime pay. Both of these have been covered in our previous lectures in more detail. So by all means check those lectures out, but we will cover some basic topics here. Then we will explain, what are the categories where the overtime hours are applied differently to some employees and then we’ll get into the meat of today’s discussion which is, which of the employees are actually exempt from earning overtime pay.

You are entitled to overtime pay if you meet 2 qualifications: number one you work more than 44 hours in a week in Ontario and secondly you are not exempt from earning overtime pay which is the topic of today’s discussion.  If you work 44 hours or more then you get paid one and a half times for each overtime hour worked. For example, if your hourly income comes out to be $20.00 an hour and you have worked one hour of overtime pay, then you get $30.00 for that time.  Or you may get time in lieu based upon one and a half times for each hour worked. For example, if you work one hour of overtime then you will get paid time off or hour and a half. This is your entitlement for the overtime. Now there’s a category of employees who will get different overtime—well, same overtime based on different hours.  We’ll talk about that as well.

Let’s talk about some of the misconceptions. Generally speaking there are 3 misconceptions people have about overtime pay. The most common one that I’ve heard people saying is that: “oh, I am a salaried employee, I make $60,000.00 a year / I make $40,000.00 a year and therefore I’m not entitled to overtime pay”.  That is not correct.  It matters not whether you are a salaried employee or whether you are earn hourly wages—as  long as you qualify the conditions that I’ve explained, you are entitled to overtime pay.

The 2nd misconception people have is about the level of income. I’ve dealt with employees who have had significantly higher income and significantly higher bonuses and somehow they are made to believe, that because of their higher income, they are not entitled to overtime pay. Again, it matters not what is the level of your income, what matters is whether you qualify based on the 2 categories of principles that apply and if you do then you are entitled to overtime pay.   

Finally, some of the employment contracts I have seen they tend to take away the right of overtime pay. For example, some contracts that I have seen, which will indicate that look you will get ‘X’ amount of bonus for your work and because you’re going to get that significant bonus you will not be entitled to overtime pay.  That is not correct. Any employment contract, any contract cannot take away your right for overtime pay, as long as you’re entitled to it under the Employment Standards Act in Ontario. Now the contract can give you more rights, but it cannot take away your rights. I have seen employment contracts where employees who are generally not entitled to overtime pay, based on Employment Standards Act, they are given overtime pay withthat specific employer. I have seen many information technology professionals who are able to earn overtime pay even though Employment Standards Act does not allow them to have overtime pay. An employment contract can give you more rights, but it cannot take away your rights for overtime.

Let’s talk about the Rules for different overtime hours for certain employees. If you are involved in road building relating to streets, highways or parking lots, then you’re maybe entitled to overtime pay after you have worked 55 hours not 44 hours. Now if you are an employee involved in road building but you’re not working on streets, highways but working on bridges, tunnels or retaining walls, for some reason your overtime hours kick in after 50 hours. If you’re working in hotels, motels, tourist resorts, restaurants and taverns and you worked 24 weeks or less in a year and you have a place given to you to stay, then your overtime hours will kick in after 50 hours of work. If you are a driver or their helper, then any work within a municipality or no more than 5 kilometers beyond municipalities (let me say I don’t understand why), then your overtime hours kick in after 50 hours. Then some other drivers the overtime hours kick in after 60 hours. If you are in one of these categories, there are more legislations, there are more Rules that you need to see. I’ve not explained this exhaustively, but you should understand that these are categories of employees, who will have additional or different rules that may apply to them.

Let’s talk about employees who are exempt from earning overtime. The most important category is number one, if you are a managerial or supervisory employee—then you are not entitled to overtime pay. This is the most common one and then there are further qualifications to that:  how do you define a manager or supervisor? There could be a discussion about that. Then what if you’re doing a combination of work one part of your work is supervisory and part of it is not. There are further rules that may apply to them, but generally speaking managerial or supervisory employees are not entitled to overtime pay.

Now this is the list of all of the employees. If you are an architect, lawyer, professional engineer, public accountant, so on and so forth; these are all listed – if you are one of these employees, then you’re not entitled to overtime pay.  Then also note that if you are a student of all of these occupations, then you’re not entitled to overtime pay.  If you are a firefighter, if you’re an employee involved in commercial fishing—there is no overtime.  If you are a guide for hunting, fishing or wilderness – there is no overtime. Landscape gardeners have no overtime. If you install or maintain swimming pools no overtime; sales person in real estate, or broker no overtime; if you’re a sales person on commission, there are additional rules, but generally speaking you’re not entitled to overtime hours; if you are a farm employee, generally speaking, no overtime hours; if you grow mushrooms or grow flowers, for retail or wholesale or you grow and transport or lay sod  or you grow trees and shrubs for the whole retail and wholesale you’re not entitled to overtime pay. If you breed horses on a farm, no overtime hours and if for any reason you raise fur bearing mammals you’re absolutely not entitled to overtime pay. How could you? If you’re employed as a student to instruct, supervise children-no overtime hours, no overtime pay. A person employed as a student at a camp for children no overtime pay, if you are employed as a student in the recreation program and there are specific requirements for that, no overtime pay, if you are employed as a superintendent or janitor or a caretaker of a residential building and you reside in that building, no overtime for you. Person employed as a cab driver, absolutely not. Ambulance driver, no overtime and if you are an information technology professional there’s no overtime for you.

One comment that I can’t help make is about the distinctions that have been drawn. I believe that these are arbitrary distinctions, with respect to which employees should get overtime pay and which should not. It makes no sense to me why a person who installs a swimming pool should not get overtime pay or a person who is a landscape gardener should not get overtime pay and somebody else would. These distinctions do not make sense to me, but they exist. What may make sense to me is that if the distinction is drawn on the basis of your income. For example, if your income is $100,000.00 or more, then you may not be entitled to overtime pay because you earn sufficient income and if you work long hours then it should not make a difference. That is one distinction that I can understand. Or if you indicate that if you’re a supervisory or managerial employee, you get sufficiently high income and if you work long hours then you should not get overtime pay.

These are the kind of distinctions that make sense to me. They’re simple. But all of these categories that are created, and not only that, a lot of employees are not entitled to overtime pay but then some employees are treated differently with respect to the hours, like why is a person, who is working on tunnels, entitled to overtime after 50 hours but the one who is working on streets entitled to overtime after 55 hours? These don’t make sense to me.  In any event what you should know is that these categories exist as of today and if one of these categories apply to you then you may not be entitled to overtime pay or your hours may be treated differently.

Thank-you for watching.

The Basic Principles of Evidence in Civil Cases

Monday, October 12th, 2020

A basic understanding of the law of evidence is essential for identifying the appropriate evidence for a litigant’s case. This lecture explains these basic principles through an example.

Canada Evidence Act: https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-5/latest/rsc-1985-c-c-5.html

Ontario Evidence Act: https://www.canlii.org/en/on/laws/stat/rso-1990-c-e23/latest/rso-1990-c-e23.html

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

 

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

In today’s lecture I will explain the basic principles of evidence that will help you in identifying the appropriate evidence that you would need for your case in a civil court in Ontario.

Please note, that this lecture is not legal advice, so if you have any specific questions regarding your issues, you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

In today’s lecture, I will explain what are the sources of evidence law that the judges and the courts consider in making decisions about evidentiary matters. I will explain to you the basic principles of evidence law that is applied by judges. I’ll try to explain this further, by way of an example.  Then, finally, I will talk about the discretionary powers of a court or a judge with respect to the evidentiary matters. There are 2 sources of law with respect to evidence. Number one is statutes and number 2 is common law, which are the decisions of judges with respect to evidentiary matters.  It contains many, many principles of evidence.  When judges are deciding on evidentiary issues, they make those decisions on the basis of a combination of common law principles and statutes.

Regarding statutes, we have the federal statute, Canada Evidence Act which deals with all matters that are in federal jurisdiction. With respect to provinces, each province has its own provincial legislation regarding evidence and in Ontario it is Evidence Act.  Other provinces and territories will have similar legislation.  The third item with respect to legislation is the Rules of Civil Procedure. They also contain various Rules with respect to how different pieces of evidence are entertained by judges and in courts.

Let’s go to basic principles.  There are 3 basic principles with respect to evidence and the courts will consider those principles in deciding whether the evidence is relevant and its need to be included in that court action or in that legal process.

The 1st principle is relevancy. The evidence needs to be relevant. What does that mean? The specific piece of evidence that you’re presenting, it should increase or decrease the probability of the truth of a fact. The evidence is whatever you have stated, whatever facts you have alleged in your pleadings, that specific evidence that you are providing, that you’re submitting, should increase or decrease the probability that, that fact is in fact true. The key thing you want to remember about relevance is that the threshold for a piece of evidence to be relevant is very low. As long as that particular piece of evidence can somehow add value with respect to the truth of that fact—either it is true or untrue—then that piece of evidence would be considered relevant.  I will explain this by way of an example, so hopefully it will be clearer.

The 2nd principle is called materiality. Materiality is a piece of evidence that when you are trying to prove a specific fact, then that specific piece of evidence must have legal significance.  In this situation there is a specific legal test that is connected to that piece of evidence or evidence is connected to that specific legal test, which is why that particular piece of evidence becomes material. Broadly speaking, you will have a lot of pieces of evidence that will be relevant and from those relevant pieces, there will be evidence—pieces of evidence that will be material because they are corresponding to a specific legal issue that you have raised or you are defending and that’s what makes those pieces of evidence material.  Finally, the evidence that you’re submitting ought to be admissible (third principle) and what this means is that there are no exclusionary rules that apply by virtue of the application of those rules, those pieces of evidence are not admissible. In some cases evidence that you have presented may be relevant and material but because of the application of exclusionary rules and there are many exclusionary rules—(today we’re not discussing that, but in another lecture we’ll talk about it), relevant and material evidence is no longer admissible in that proceeding.

Examples of evidence that could be excluded is hearsay.  Hearsay evidence could be relevant and material—quite relevant, quite material—but because the evidence is hearsay it ought to be excluded.  The judge will exclude that.  Then there are exclusions to hearsay evidence (further exclusions) which will allow hearsay evidence to be admitted.  We’re not discussing that today. Character evidence is another example where character evidence may not be admitted. Similarly, there may be circumstances where opinion evidence is not admitted.  There are a number of categories of exclusionary rules that may apply. But what you want to remember is that for the judge to accept any piece of evidence, it has to be relevant and material and has to be admissible.

Let’s go to an example and see if we can explain the concept of relevance and materiality a bit better. I take an example of a case, where you had retained a contractor to renovate your kitchen.  In that process the contractor did not do the job properly.  You incurred damages as a result of inferior work or the contractor’s work that was not performed in accordance with your agreement or instructions.  You have incurred damages and you have sued the contractor in court for your damages. Within that context I am giving an example of one specific issue which was with respect to the countertops in the kitchen. You claim in your statement of claim that you had an agreement with the contractor that he will install granite countertops.  The countertops that he has installed are actually quartz—which was not something that you had agreed upon.  You had to have the quartz countertops removed and then granite countertops installed. Because of that you have incurred damages for which you are claiming before the court.

Normally if you have one contract, one piece of document that specifies what the agreement is, what is the scope of work, what is the cost, what material will be used, then that piece of evidence will be relevant and material.  You will produce that in order to show what was agreed upon and what the nature of the contract was.  Let’s assume, in this case, that there was no written contract—one piece of document.  The way you had agreed to all of the terms with your contractor was by e-mails and text messages—which is not unusual.  All of the evidence that you are going to present with respect to proving your case is going to be from the e-mails and text messages that you corresponded with your contractor.

In those e-mails let’s assume that you had e-mails that were discussing countertops. Imagine these are a bunch of e-mails where you state my budget is $5000.00 for countertops.  I would like to have granite countertops. The contractor, for example says, “well, $5000.00 is a low budget. I think you should consider some other material, maybe quartz”.  All of these e-mails will be relevant and material.  Where as if there are other e-mails that are discussing kitchen cabinets that may or may not be relevant depending upon the circumstances of your case.  But they’re not material.

What does this mean? Why are these ones material and these ones not material to this particular case? As I said for materiality you need to understand the legal significance of that specific piece of evidence that you are providing in this case.  Because it is a breach of contract case, there are 3 (I would say there are 3) basic things that you need to legally prove to the court. Number one that there was an agreement—there was a contract which specified that the material for the countertops will be granite. There’s a contractual agreement for the installation of granite countertops. That’s item number one. Second item that you’ll have to prove to the court is that the contractor breached that agreement. You will provide pieces of evidence proving to the court that what was installed was not granite, it was quartz. The third thing that you will have to prove to the court is that because of that breach you incurred damages.  In this case, you will be able to show, for example, invoices for removal of quartz and for the reinstallation or purchase of granite countertops and installation of that. Those are the three categories (3 things) that you have to prove in order for you legally to get your damages that you’re claiming.

The 1st item that you have to prove is that there was indeed a contractual agreement between you and the contractor for the installation of granite countertops.  The emails that are talking about countertops are relevant and therefore material. But the kitchen cabinet emails are not material because they are not going to prove the agreement of granite countertops. Now, if you have issues about kitchen cabinet as well with the contractor then, of course, these e-mails will be relevant and material—depending upon what kind of issues you have.  The point, that you want to carry from this discussion (from this example) is that one of the important things that you have to do in selecting evidence is to understand what is the legal task that you have to meet either to prove your case or to defend your case and then what are the pieces of evidence that correspond with that legal test and therefore those pieces of evidence will become material.

Let’s go to our discussion about the discretionary power of the court. What you want to remember from this discussion is that the courts have this broad discretionary power with respect to evidence.  In certain circumstances where the evidence may be relevant, may be material, may be admissible and there are no exclusionary rules that may apply, even then the court, the judge may decide that that particular piece of evidence ought not to be admitted with respect to this particular trial that you’re dealing with. How do judges decide that?  They apply this test where they assess the probative value of the piece of evidence that you have provided, versus the prejudicial effect of that evidence.

Let’s do this by way of an example. The example I have chosen is a bit extreme but it illustrates the point probably a bit better. Let’s take an example of a murder case.  Where the question is—does the Crown need to provide the photos of the deceased or the person who was murdered, as evidence to show that the person has indeed died?  The court will consider the probative value of those pieces of photos to confirm the death of that person.  There may be other ways to show that the person has died. There could be a death certificate.  In that situation the court will consider what is the benefit of having the deceased person’s photos, as part of evidence to prove that the person has died.  On the other hand the prejudicial effect may be that, seeing the photos of that person may have some sort of psychological impact on the minds of the jury.  That may have an impact on how that trial is decided or the process of trial is taken by the jury. In that case, the court may decide that there isn’t much probative value from those photos to be included as evidence even though they’re admissible. A death certificate from a hospital or a doctor is sufficient.  The court may say, we’re not going to admit the photos. But for example, if those photos are being presented to show, to prove the method of killing of the person, then the probative value may be much higher and the prejudicial effect maybe much lower.  In that case the court may allow the admissibility of those pieces of evidence.

In all of this what you want to understand, the 2 things you want to carry is you want to make sure that your evidence is material and it’s not otherwise inadmissible.  That means that you need to understand the legal significance of the evidence that you’re using.  Generally speaking what you want to remember from all of this is that judges generally like to have all of the evidence admitted as much as possible.  If it’s clearly hearsay evidence or there’s a prejudice to the other side then of course the judge will not allow that evidence but otherwise judges will like to have all pieces of evidence because then the judge can assign different weight to different pieces of evidence—if they believe that a particular piece of evidence seems to be weak, they may assign a lesser value to that piece of evidence / may rely lesser on that and there may be other evidence.  They like to have that option, so that within the context of the entire case, they can figure out which pieces of evidence are more appropriate for them to make their decision on.

Hopefully this lecture gives you a broader understanding of the fundamentals of evidence law.  As I indicated earlier, evidence law is quite complicated. It’s intricate. But if you have this basic understanding, at least you will be able to figure out what kind of evidence is relevant and material to your case and you will be able to make that selection better.

Thank you for watching.