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Welcome everyone, this is Amer Mushtaq from You Counsel today will talk about some of the proposed changes to Ontario’s employment laws that may come into effect in a few months time. This is generally in government’s response to the changing nature of the workplaces, the increase in the gig employment, the freelance, the contract employment, and how that impacts the rights of an employee in a workplace. So, let’s get into what are some of those proposed changes, so, you can get a sense of what’s coming down the line in the near future.

We begin with our disclaimer that this course is not legal advice, so, if you have any specific questions you must contact a lawyer or paralegal.

This is a proposed legislation it’s called the Fair Workplaces Better Jobs Act – 2017. Please keep in mind, it’s still proposed. It’s going through the readings in the Parliament it is not enacted yet, but once this legislation comes into full force, it will include amendments to the Employment Standards Act 2000, this is a legislation that we have often talked about in our various lectures and this legislation provides various rights and protections to employees in a workplace, in a non-unionized environment and so the Fair Work Places Better Jobs Act 2017 brings amendments to the Employment Standards Act 2000. And so what are some of the most common, most important amendments changes that will come into effect?

Number one, the minimum wage will be increased, and it will be increased to $15 an hour by January 1, 2019, this will be done in a gradual way, so, the wage becomes $11.40 and then that amount runs up to September 30, 2017 from October 1^st, it goes up to $11.60 and that runs up to the end of this year and then it jumps to $14 an hour on January 1, 2018 and it remains $14 an hour for the entire 2018 and then as of January 1, 2019 the minimum wage will go to $15 an hour.

As always, there are some exceptions not everyone is entitled to minimum wage. Some of the exceptions are minimum wages for students may be different for liquor servers it’s different, from home workers, the minimum wage may be different. So, if you may fall under one of those exceptions then a different minimum wage will apply to your employment.

Equal pay for equal work, this is quite a significant change in the legislation. And essentially what it means is whether you’re a full time employee, part time employee, temporary, casual, or seasonal worker, if you’re doing the same job, you’re getting paid the same wages. And it’s important because, as we know, that the nature of work place is changing significantly a lot of temporary job, casual jobs are coming in, and replacing the full time positions that used to exist.

Again, there are some exceptions to equal pay for equal work. If the pay is being which is they’re being paid on the basis of seniority, then that may be an exception. If there is a specific merit system for the wages then that would apply. If you are in a work place that you get paid based upon the quantity of the product that you produce or the quality of production then that may apply and then allow different wages for different workers doing the same job.

There’s no exception on the bases of sex and employment status and if you have any idea about the legislative makeup of Ontario, Canada there wasn’t a previously existing legislation, which would require the employer to pay the same wages to male and female employees. So, there’s no exception remaining on the basis of sex and so, if a man or a woman does the same job, they will be entitled to the same wages and again, the employment status whether you’re a full time or part time employee, is irrelevant as long as you’re doing the same work, you will get the same wages. So, it’s an important change to the legislation.

Now, Temporary Help Agencies. A lot of employment now is coming through Temporary Help agencies and so, if you are someone who is working through a Temporary Help Agency, then it’s good for you to know that you will still get equal pay for equal work. So, if you are an assignment worker coming to that employer through a Temporary Help Agency, you will get paid the same wages as a permanent employee of that company.

Another important aspect of the change with respect to assignment workers, through temporary help agencies is that if you are working on a contract that is supposed to last three months or more and if there is an early terminations, you will be entitled to certain terminations notice in this situation, in this specific case, it will be about a one week of notice, and then you get the termination notice and you don’t just –sort of- are kicked out of got a contract.

Another change is with respect to scheduling, if you are an employee who has worked for about three months and you work, you know, you do a shift work or you want to change your schedule, either your shift or you want to change the location of your work within that company after three months, you can request that without the fear of reprisals. So, an example could be that if you were hired in a factory to work and the only way you could find that job was to work for the night shift and once you start working after three months, you require your shift to be changed to the day time, if previously, if you ask that kind of change a lot of employees would fear that the employer will terminate that person simply because of asking for the change in their shift. So, this law basically now allows you to request it under your specific circumstances, does not guarantee that your shift will change, that will depend upon the employer circumstances availability of shift or work in the specific location that you want, but at least you can ask or you can request that change without being worried that the employer will terminate your employment.

Another important aspect that of the scheduling is that if you are asked to come to your shift which is longer than three hours but once you arrive you show up at work the employer tells you that your services are not required for more than three hours let say only for an hour and sends you back home, this legislation, this rule now requires the employer to pay you for three hours of work. And one of the examples that I can tell from my experience, was back in the days when I used to work for a call center, often times more employees/customer service representatives were called in to work, and if the call volume was low then our supervisor would start picking certain employees and send them home. So, in those circumstances, if you are required to work for less than three hours even though your original shift was longer than that then you will get paid with three hours.

If your shift is cancelled within 48 hours of its start, you will still get paid for three hours, so, cancellation in less than 48 hours will trigger payment of three hours. Also, if you are an on call employee and you are not called in to work, so, you are on call they were available, but you are not required to come in to work in this situation you will still get three hours of pay.

Employee misclassification – this is an important topic and often times an employee may be labeled as an independent contractor we have several lectures with respect to independent contractor issues by all means check those out. But what happens basically is that if an employer misclassifies an employee as an independent contractor then that takes away certain protections that the employee may have under the Employment Standards Act, so, that’s why classification of a person as an employee is important if the person needs to maintain the protections of the E.S.A. So, if an employer misclassifies an employee, the burden is now on the employer to prove that the classification is correct, so, the circumstances of that classification, the criteria is met and it’s on the employer to now prove that. If the employer misclassifies then there’s a potential prosecution of that employer, there is potential public disclosure, and then monetary penalties that may be imposed on that employer. So, essentially it’s important for the employer and the employee to make sure that they’re classified properly and if someone should be considered an employee then that’s how they should be classified and they should be allowed to have all the protections under the E.S.A.

With respect to who is an employee and who is an independent contractor, we have a few lectures as well, so, by all means check those out.

Paid vacation. If you have been working for that employer for five years or more, you get three weeks of paid vacation, previously, it was only two weeks and Employment Standards Act and that remained regardless of your length of service, so, now after three to five years you’ve got three weeks of pay.

Personal Emergency Leave – now, the legislation allows or will allow for 10 Personal Emergency Leave days per year for each employee. So, previously there wasn’t any Personal Emergency Leave category unless there were 50 or more employees in that workplace and it was a different category, but generally there wasn’t a personal emergency leave. Now, you get by default, 10 personal emergency leave days in a year and then out of those 10, two days are paid days so, the employer is required to pay you. And another factor that you want to keep in mind is that for these, for the Personal Emergency Leave you no longer and if it’s because of illness you no longer are required to provide a doctor’s note. Previously if you were sick, the employer may ask you to provide a doctor’s note, but with respect to this personally emergency leave if you are seeking leave because of your illness, you’re not required to provide a doctor’s note.

So, these are some of the changes that are in the pipeline once the legislation is enacted then they will come into force with the timelines that I have talked about. And I’m curious to know that these changes, whether these changes help your circumstances if you’re an employee, or whether they create certain problems for you, if your employer if you have to abide by these legislations and do you believe that this legislation, these changes are effectively responding to the changing workplace environment that we are seeing increasingly around us.

Thank you for watching and we look forward to hearing from you.

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Machine Transcription:

Welcome everyone, this is Amer Mushtaq from You Counsel. Today, we’ll talk about the Tort of Harassment in Ontario. I’ll explain to you why we are talking about this particular tort today and not any of the other torts. Why is this tort relevant, why is it important, and what are some of the latest developments in this area of law? So, let’s jump right into it.

We begin with our usual disclaimer that this course is not legal advice, so, if you have any specific questions you must contact a lawyer or paralegal or contact the Law Society for Upper Canada.

If you are familiar with tort, then you have an idea of what I’m talking about in terms of the general law, but if you don’t, I will talk about that very, very briefly I’ll have a separate lecture on torts and contracts later on, but let’s briefly talk about it … so, at least you can understand the fundamental concept. So, let me explain this by giving you an example, when you have a car accident and leaving aside what happens between the insurance companies, if you end up or decide to sue the driver of the other car because he or she had caused the accident. Then you do that in a tort. There is no contractual relationship between you and that driver, you have never signed a contract that that person will drive carefully and you would drive carefully, it comes under tort law meaning that there is a general duty on everyone to follow a good behavior, meaning drive carefully. And so, that is the tort law, and in circumstances where parties have a specific contract amongst them, whether in writing or oral that comes in at the jurisdiction of contract law. So, this Tort of Harassment is a tort and that’s the category, it’s not a contractual legal issue.

The other thing I want to mention is that new tort question marks and so, the Tort of Harassment is that something new, or has it always existed? A lot of people who are not familiar with our legal system, they believe that it makes sense that a Tort of Harassment must exist because that’s an unfairness that happens all the time, and when they come to lawyers like me they find this in our response that the Tort of Harassment either does not exist in Ontario at all or the law is at least unclear whether the tort exists or not. But a majority of lawyers, if you had come to them last year about a harassment issue, they would explain to you that there is nothing in the law that allows you to commence a tort action on the basis of harassment. So, most lawyers will explain to you that this is really a new tort, a new development in Ontario law, and so, that’s why it today’s discussion is important.

And how did this tort come into being? There is a case called Merrifield versus the Attorney General, it’s a 2017 case, this is the title or the citation of the case you can find it on Google, if you type this in you will find that the case is available. Also know that ‘A’ is a 2017 case, ‘B’ It’s an Ontario case, and ‘C’ it’s from the Ontario Superior Court, so, it’s the lowest level of court in Ontario, so that’s the case and what you want to know is that the case is already appealed. So, what that means is that even though the judge in this case that that there is a Tort of Harassment that exists, the Appellate Court, the Court of Appeal of Ontario or the Supreme Court of Canada if it goes all the way there, may decide that the tort does not exist. So, as far as the Appellate process is concerned it is still being appealed, so, we will know in the future whether this tort exists or not. But as long as the matter stand today the tort exists in Ontario as 2017.

Okay, I’ll have some discussion of about harassment in the Employment Law context and that’s where my expertise is and a lot of issues arise with respect to harassment in Employment Law context. So, let me explain by saying by giving you some examples, when you as a plaintiff come to a lawyer or to the judicial system, you were approaching the judicial system because there was some unfairness that you had experienced and you want that to be remedied. But you cannot go to a court and basically say, “that this was the unfairness and I want it remedied”. The way our judicial system is structured is that you have to have what’s called a Cause of Action. So, your unfairness need to fit into a category of a Cause of Action and then you meet the elements of that Cause of Action and then you get your remedy so, there’s no general unfairness remedies available in court. Some people who argue there are, because there’s an equitable jurisdiction of the court but that’s a separate discussion. Generally speaking, you have to have a Cause of Action.

Now, what kind of unfairness and employment law contacts you can deal with, I’ll give you an example. The client comes to me and says, “that I was denied this promotion unfairly, I met all the criteria, I had the best performance and everything and ‘X’ was the person who got the promotion and that was unfair, I want you to bring an action against the employer”. And I will say, “I’m sorry if you don’t have a contractual clause that says that this is the promotion criteria which will be followed, you cannot just simply ask the court for that general unfairness right”. So, you there’s no sort of Tort of Unfairness so, you cannot do that.

So, what I will do in the analysis of that case is I’ll ask certain follow up questions to determine whether this case can fall into discrimination categories. So I will probe the client and ask, “why do you believe you were not given the promotion? Does it relate to any of the criteria in the Human Rights Code? So, did you not get promotion because of your race, because if you ethnic origin, because of your creed, sexual orientation, your sex, family status, all of those things are about 15, 16 types of discrimination outlined in the human rights code”. So, if the unfairness and promotion was because of one of those grounds and partially, it doesn’t have to be completely, but if your background, or your religion, or your disability, or your sexual orientation was one of the factors in many, in the employer deciding not to promote you, leaving aside all of the good things that would allow you to be entitled to that position, then, I have now this opportunity to bring a case against the employer on the basis of discrimination. So, that’s the Cause of Action that I am putting the square in this hole of discrimination. So, that’s how the legal process when we are going to a court we have to get to those categories.

So, that’s the challenge with harassment, that when someone comes to me as an employment lawyer and states that, “I was harassed by my coworker, by my supervisor over such and such time, and I want to bring the court action absent you know, a discrimination or absent something else”, there wasn’t a category of harassment that that we could sue that person and get remedies. So, that was the challenge in Employment Law context and obviously, in Personal Injury cases there’s a similar challenge.

So, what were if someone comes to us and the evidence indicates that the person was harassed but we cannot bring a Tort of Harassment claim, what would we do? So, we do have some options and again this is like pegging the square into a whole kind of situation.

So, one option was or has is to bring a claim for Intentional Infliction of Mental Suffering, this is also a tort, it’s called an intentional tort, and it has its own criteria and you have to meet those tests and then prove to the court or demonstrate to the court that the actions of the perpetrator were indeed intentional Infliction of Mental Suffering on you that was one category. We have another category called there is a Duty of Good Faith and Fair Dealing on the employer to deal with its employees, so, that’s a category or Cause of Action that can be alleged.

There’s also a Duty of Honesty in Contractual Performance, which came about a couple years ago or so, by Supreme Court of Canada, and there are some other categories. But the point of all of this is that a simple harassment case which on the facts of the case, an ordinary person will consider this to be a harassment, you were not able to go to court and claim harassment and get remedies. You would have to find some other categories here and then tell your story and hope that you will meet the criteria of these categories and be successful in your claim so, there was no Tort of Harassment.

Now, comes the Merrifield case in 2017 and this case was about a member of Merrifield, was a member of R.C.M.P. who was a victim of harassment and bullying by the superiors, and the lawyers brought this action. And one of the challenges in that case was again, that it was very hard to put the case into the category of simply Intentional Infliction of Mental Suffering or simply Good Faith and Duty or Breach of Good Faith and Fair Dealing. So, the lawyers then went ahead and then brought a case for the Tort of Harassment in addition to the Intentional Infliction, and they were successful in both on harassment and intentional Infliction. So, you will have a question in your mind that if the Tort of Harassment did not exist then why would they be able to get a Tort of Harassment judgment in this case? That question can be answered if you understand that it’s not that there are finite numbers of Causes of Action and they cannot grow, that’s not how the judicial system works. There’s always an opportunity to allege new Causes of Action, and the court does have a power if the fairness of the case demands that those new Causes of Action or that new Cause of Action should be acknowledged by the court then the court will go ahead and do it.

So, in this case the court, if you if you read this case on Google you will notice that the court had a very lengthy analysis and described why this case was not suitable only on the basis of tort of Intentional Infliction of Mental Suffering, why the Tort of Harassment was an appropriate category and so, that is explained. It’s a lengthy decision, but it’s worth reading because you understand what is happening in the judge’s mind in terms of coming to the conclusion that this is time that the Tort of Harassment should be recognized in Ontario.

So, how do you go about proving the Tort of Harassment? There are four elements of course of harassment of harassment and you have to prove each one of them to get your remedies. First one is, was the conduct of the defendant towards the plaintiff outrageous? And so, the conduct must be outrageous. And I’ll give you a sort of an important distinction. In the Tort of Harassment, the conduct needs only to be outrageous. If you are proving Intentional Infliction of Mental Suffering, the conduct not only needs to be outrageous, but it also must be flagrant. These are these are specific English words with specific meaning in the legal context, but in Intentional Infliction you not only have to prove that the conduct was outrageous, but it was also flagrant. So, there is a higher demand in terms of the Tort of Intentional Infliction of Mental Suffering.

Now, if you have proven that the conduct was outrageous the second element is did the defendant intend to cause emotional distress or did he/she have a reckless disregard for causing the plaintiff to suffer from emotional distress? So, there has to be an intention to cause emotional distress or at the minimum, there has to be a reckless disregard. Not just simple disregard but a disregard that is reckless, so, a bit higher than a simple disregard, and if that’s the case, then you meet the element second element of the Tort of Harassment.

Element number three is that, did the plaintiff suffer from severe or extreme emotional distress? And so, that means just being upset or just having a little bit of hurt feelings is not sufficient, there has to be severe or extreme emotional distress. And again there is a difference here between the Tort of Harassment and the Intentional Infliction of Mental Suffering. In that case, the harm to the plaintiff must be a provable and visible illness. So, visible or provable, that is the word that is used in the Tort of Intentional Infliction of Mental Suffering, which is a bit higher, a requirement than the Tort of Harassment. So, that’s why the Tort of Harassment will be relatively easier category to prove with respect to the Intentional Infliction of Mental Suffering.

The fourth element is, was the outrageous conduct of the defendant, the actual and proximate cause of the emotional distress? So, if somebody suffered from severe or extreme emotional distress, how do you know whether that distress was caused by the outrageous conduct or was there something else going on in the individual’s life? Some family issues some other issues that were nothing to do with the defendant, but if they caused the emotional distress then obviously the defendant should not be liable for the damages. So, those are the four elements and we’ll get into those once we get to talking about the Tort of Harassment in more detail. The idea of this lecture is for you to understand the basic concept of what are the elements of Tort of Harassment. So, you establish those four elements and you can get damages for the Tort of Harassment.

So, in conclusion one of the advantages of having this new sort of Tort of Harassment is really calling a spade a spade. If it looks like harassment why not call it harassment? And why not have a category that is exclusively catered for harassment issues? And we know, at least in Ontario, that at least the legislature has been talking about harassment issues in the workplace for a long time. At least from 2009 when the Occupational Health and Safety Act was revised and we had the workplace bullying issues and harassment issues included in the Occupational Health and Safety Act and there has been more legislation put forth. But this is for the court to now acknowledge that there are a lot of harassment issues that are sufficiently grave, that they need to be dealt with in a separate category in the courts.

It is a new development in tort law as I said, it did not exist in Ontario, or at least it wasn’t clear that the Tort of Harassment existed that there were not a lot of cases that will talk about Tort of Harassment in Ontario. So, the 2017 Merrifield case is the first one that comes out clearly and openly and acknowledges Tort of Harassment. I want to remind you that this case is appealed, so, if the Appellate Court Ontario Court of Appeal decides that there is no Tort of Harassment, that this matter could have been dealt with in any other torts, then you can scrap my lecture and wait for my new lecture on what the law would be at that time. But as far as we’re concerned now, there is this tort that exist and people can benefit from this tort in appropriate circumstances. If you have any questions or comments please feel free to contact us and we look forward to seeing you in the next lecture. Thanks for watching.

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Machine Transcription:

Welcome everyone this is Amer Mushtaq from You Counsel. Today, we’ll talk about Legal Releases in Canada; we’ll cover some of the basic concepts about Legal Release. Keep in mind that Legal Releases could become fairly complicated and there are books written to explain what an appropriate or correct Legal Release is. So, this lecture is really to give you a basic understanding of a Legal Release, and why it’s important is because if you are ever engaged in a legal dispute in Canada, whether by way of litigation or not and if your dispute gets resolved, you may end up executing a release in favor of the other party or getting a release from the other party if they have a claim against you; and therefore, it is important for you to understand what a Legal Release is and what it contains.

We’ll begin with our usual disclaimer that is course is not legal advice, so, if you have any specific questions you must contact a lawyer or contact the Law Society of Upper Canada to get a referral.

We’ll cover in this topic, in this lecture, we’ll explain to you what it really is, what is the purpose of a release what are different forms of release, some of the common clauses that are contained in a release, and some of the challenges that may be posed to the enforceability offered release.

The basic thing you want to keep in mind is that a release is a contract, like any other contract it’s entered into between two or more parties, and it has to have normally, the release as I mentioned earlier is usually part of a settlement agreement, parties have resolved their legal dispute either by way of litigation or not but they have resolved the dispute and the release is part of that settlement agreement. And just like any other contract, each party gets a consideration. That’s the legal word what that means is – in this transaction in this settlement each party gets something out of that deal of that transaction.

A common example I can give you is that of a Wrongful Dismissal Action in which an employee commences a court action or at least brings a claim or raises a claim against the employer. The employee claims that the employee is entitled to more money than the employer has provided in severance and that gives rise to a legal claim against the employer. So, if there is a settlement then both parties are getting something out of that. So, the employee perhaps most likely is getting more money, so the employee says, “we don’t agree with your claim, but we want to settle this and here is some more money that we are providing you with respect to your claim”. And what does the employer on the other hand gets out of that deal? The employer gets the release, it gets the employee to release the employer of the Wrongful Dismissal Claim and maybe some other claims that the employee may potentially have against the employer. So, that’s why a release is a contract, it may not like many contracts, this particular contract may not be just contained in one document, it could be part of several documents, but the Release could be one of those documents in that deal.

So, what is the purpose of a Release? The purpose of a release is to extinguish causes of actions by the releasing party. So, going back to our employer employee example of a Wrongful Dismissal Action, what is the employer getting out of that release out of that transaction? Normally speaking, the employer what the employer wants, that I’m giving you more money to the employee and then I want the employee never to sue me for anything with respect to the employment with that company right? Essentially, that’s what the employer would like to have, that I’m giving you this money you the employee is getting this money and I don’t want to see you again with respect to a legal issues, you are not going to sue me for anything else. So, ideally what employer would like in terms of the causes of actions that are extinguished is not only the Wrongful Dismissal Claim, but any possible claims that the employee could raise.

So, if the employer would not like to be in a situation where the employee gets the money for the Wrongful Dismissal Action, settles the case, releases the employer for the Wrongful Dismissal Action then goes on to sue the employer let’s say for unpaid overtime pay, or unpaid commission, or let’s say goes on to bring a human rights claim against the employer. So, employers would like to have a certainty with respect to this deal and what they would prefer is that any and all causes of actions that that have arisen or could have arisen with respect to their relationship, they are actually released of those causes of action. So, that’s the goal of the release that it covers, not only the issue or the dispute at hand, but any possible disputes that could have been raised or that that become known later on and the employer would like those causes of action to be released, so, that the deal is complete and there is some certainty in this situation, in this example, for the employer and in other cases for the parties with respect to other issues that may have. So, that’s the purpose of the release is not just limited to the dispute at hand but the release could release all causes of action that may be raised.

Form of Release. A Release could be oral like any other contract or could be in writing. As you can imagine, if the release is oral there could be potentially an issue later down the line to determine what was it that exactly was released. And I’ll give you an example of a Release that I have for you, you will realize that the kinds of things that are covered in a release, if you do that orally you may have a significant issue with respect to the enforceability of that specific Release.

Let’s turn to some of the common clauses in a Release. First of all, a Release obviously should identify the parties that are part of that release. What are the parties? If it’s an employer and employee the name of the employer and the name of the employee and any of their parties that are related or that are covered in that release needs to be identified. Either in broad terms generally speaking or in specific terms and I’ll explain to you live the more about the broad and the general identification of parties. Secondly, the Release must have a consideration – who is getting what and the consideration may be explain in the release explicitly or it may be by in way of a reference. So, for instance, a Release may be a standalone document that may refer to a settlement agreement, which is a separate document and that will be sufficient.

You also want to be clear in the Release who is being released and, I’ve put two kinds of parties direct parties and third parties. Direct parties could be the ones that are identified specifically, for example, in this case employer, its directors, officers, employees, agents, successor, companies things like that that – those could be the direct parties that are released. And then third parties, those could be other parties that may have some relationship or some concerns with respect to any causes of action that the one of the parties may raise against them. And what happens to that third party? So, can a third party be released in a release agreement, and the answer is yes. So, who is being released is important.

Then what are the claims that are being released? What is it that releasor is exactly releasing? And it could be identified in broad terms, in general terms, for example, “I release the other party of all common law are statutory claims that I have against that party or may have against that party up to now”, that is a generic sort of form. And then a very specific claims that could be released, “I’m releasing the party off my unpaid overtime claim, my commissions claim, or you know payment of my car, or whatever the specific claim is those could be identified”. And ideally in a release you want to cover both, the releases are usually general to cover, you know, some of the issues that are not specifically raised but it must also cover specific issues that are being released.

A Release may contain a confidentiality clause, it may not. It’s up to the parties if you want the terms of the settlement or the Release to remain confidential, you can include that clause. A Release could have a non-disparagement clause that the Releaser cannot say anything negative about the other party at any forum, that’s not uncommon in employment law situation.

A Release should have an independent legal advice, so, the party that is releasing should have the opportunity to obtain independent legal advice or should have obtain an independent legal advice and I’ll explain to you why that’s important further down the line, in this lecture. A release may cover issues relating to tax liability, it’s common in employment law cases not common in other kinds of settlement of cases but in employment law, cases tax liability concerns may be important. A release may contain no admission of guilt or liability, so, it is quite understandable that when there is a settlement, the settlement is not based upon one party saying or admitting that they have done something wrong, it’s basically to avoid the litigation of that dispute, and so, no admission of guilt could be part of a release. So, those are some of the clauses commonly in a release.

Let’s talk about some of the challenges with respect to enforceability of a Release, and the common challenges are as you can imagine, interpretation issues. What is a specific law saying? Does the clause intend to state what the party is claiming or could it be interpreted differently? And then a common principle that you want to keep in mind is called, “Contra Proferentem”, it’s a Latin word and what it means is, the party who actually drafts the Release, the party who’s authoring the Release, if there is any ambiguity with respect to a clause that ambiguity will be interpreted against the party who created the release, right? So, if you are the one who wrote the release and there is an ambiguity and the court says this clause could be interpreted in more than one ways, and so, the court will find the interpretation against the one who drafted it. Because if you wrote the release, you better make sure that you have you have written it clearly, that there’s no ambiguity and if there is ambiguity, you are the one who’s going to get penalized for that.

No Consensus Ad idem, meaning no meeting of minds. The Release, one party may say we never agreed to these things that the other party is claiming and as you can imagine, this could be an issue an oral releases. Where one party claims that the other party released me, not only of the commissions but overtime pay and the other party says, “no we never discussed overtime pay and there is no agreement there is no meeting of minds and there’s no consensus on what the specific claim that either party is now making that they got the release but they never did”.

Failure of Consideration, that’s an important part. As I said It’s like a contract, Releases are like a contract, so, there has to be a consideration, it is not a binding if one party is getting something out of the other, and the other party is not getting anything out of that contract, so, then the release can fail on consideration. Common example and again an Employment Law situation could be where if the release gives the payment that is statutory payment, that the employee is entitled to otherwise, even if the employee does not sign the release and the release uses that as consideration and that may be challenged and maybe considered that it’s a Failure of Consideration on part of the employer, in that case and the release is not binding. So Failure of Consideration is an important element.

And then a Release could be enforced, could be could be challenged on the basis of Unconscionability in that the very contract the very release, the way it’s drafted is unconscionable for one party. And let’s talk about unconscionability for a second, there are four elements to unconscionability and all of those elements must be present for a court to find that the release, even the properly drafted correct language and everything, but the release is unconscionable. And what are those four elements? Element number one is that the Release has to be grossly unfair for one party, the one that has issued the Release signed the Release now claims that the Release is not binding. So, one of the things that the party has to show is that the exchange, the agreement, the deal, the consideration is really grossly unfair for the party who signed the release. So, that must be one element to establish. Second, the party must show that even though it was grossly unfair they had no independent legal advice, they had that they did not get an opportunity to obtain legal advice and so, that’s an important element. Third element is that there must be an overwhelming imbalance of bargaining power between the parties. So, you know, the lack of business knowledge for instance, the lack of better understanding of what the party is executing, illiteracy if a person is illiterate, the person cannot understand the release, the idea, the terms or the conditions in the release properly, their language barriers, their disability issues, so, their number of things that could create an imbalance in the bargaining position of the parties. Example in this case, is employer and employee so, the employee has no understanding of what he or she may be signing and so, that could create an imbalance. And finally the other party knowingly is taking advantage of the other side. So, in this case, a case of an employer-employee relationship. Let’s say the employer knows that the employee had no opportunity to get any kind of legal advice, because let’s say, when the deal was made the employee was asked to sign the release right then and there, not given an opportunity to go see a lawyer, and that was obvious to the employer, and the employer knew that it was grossly unfair, the deal that they were getting out of the employee was fundamentally unfair if the employee had this matter objectively reviewed by a judge and then there is an imbalance. So, if the employer in this situation, had knowledge that the employee that they were able to take advantage of the employee and then they proceeded to do that the court may find a release to be unconscionable.

So, those are some of the examples of when a release could be challenged, let me quickly go over a release. This is this is not a standard release as I said I’m just going to give you an example so, you can understand how releases drafted.

So, paragraph one as I said consideration is important, so, in consideration of the terms of settlement outlined in a letter so, it’s referring to some other letter or agreement, which is the settlement agreement so that’s the consideration here. And then who is releasing I? And this is an individual, so, individual names comes in here. If it’s a company or corporation it’s defined differently, and then, so, the individual his or her name on behalf of himself herself, successors and assigns the releaser is now releasing who? And then there is the name of the releaser, so hereby remise, release, and forever discharge comes the name of the releasee, the company as present and former directors, officers, representatives, as you can notice that it’s defined and very detailed.

And then what is being released? From all manners of actions, causes of action, suits, debts, dues, accounts, bonds, contracts, liens, claims, and demands. And it goes on and on and on and it covers generally a lot of information, a lot of claims that are being released. Then it gets into the specifics, any claims relating to the termination of employment contract, including damages for wages, salary, remuneration, commission, vacation pay, overtime pay, terminations pay, severance pay, and so on, and so forth.

So, it goes beyond that and then in paragraph two it goes further and in this paragraph you will notice that the releaser is now releasing some of the statutory claims. So, that set payment, the payment that has been made is releasing any claims again under Employment Standards Act, under Human Rights Code, Workplace safety and Insurance Act and so on and so forth. So, a number of things all of these the first two paragraphs cover the kind of things that are being released.

Now, who else is could be released as I mentioned third party, so, in this paragraph the releaser are saying I further agree not to make our cost to be initiated any claims expressly including any cross claims, counterclaims, third party action, up again against any other person or corporation who might claim contribution or indemnity against the person or corporation discharged by this release. What is, what does this mean? I’ll give you an example because it’s a complicated language, but briefly speaking, again an employer employee situation, let’s say that you make a deal, you release the employer, but then you have a separate claim against the insurance company who managed the benefits and that’s a separate contract that you have with them, and you sue them for any disability issues. And then the insurance company can claim indemnity from the employer saying, “okay, this person so and so is suing us, but you the employer are liable for this claim because of our relationship or because of something that you have done, you the employer have done wrong”. So, in that case the insurance company is now claiming contribution or indemnity from the employer. So, this release is saying listen, you’re not only releasing the employer and all the parties listed above, you’re not going to sue anybody else who can come and sue us, so, who can come and claim contribution indemnity. So, you’re releasing them as well and those are third parties and it’s usually contained in every single release.

Number four is the confidentiality clause, it’s simple; if you want the release to be confidential you can ask for it. You can say that I had the opportunity to obtain any kind of legal advice which is important, it’s now usually contained in all of the releases and then as I mentioned no admission of guilt. Clause seven talks about that this release is being made without any admission of liability or guilt. And then paragraph eight talks about tax liability. And text liability as I said, sometimes is relevant in employment law cases, for example as you know, it’s the employer’s job, it’s the employers responsibility to deduct you know taxes from an employee’s wages and then remit it to C.R.A. So, if an employer was supposed to deduct certain taxes as part of the settlement agreement and fail to do so, the employer wants the employee to indemnify the employer, so that those monies could be taken from the employee and given to [Canada] Revenue Agency. So, that’s an example of the release.

The conclusion that you want to carry from this lecture is that you want to make sure that your release is in writing it’s not orally, because you notice that there are a number of nuances to every single clause that you agree to in a release and so if it’s and writing you’re better off, oral release may not be helpful. You have to be very careful in drafting, because you have to be clear about what is being released, who is being released, were the parties accurately named the parties accurately, define third parties, what are the kinds of claims you are releasing, are you covering every possible claim that could be covered in the release, are you missing out [on] something, are you drawing any exceptions to any claims? So all of that, is part of the drafting of a release. The release of general claims is important and release of specific claims is also important.

So, I hope that you know this gives you an understanding of what is the purpose of the Release, what are some of the common elements in a Release, but ideally, if you are in a situation where you have to deal with a Release, you want to get some legal advice and then have the release drafted, or if you are signing a release to have to release reviewed by a lawyer so, that you understand what is it exactly that you are releasing.

Hopefully, this lecture gives you are broad understanding of the releases in Canada. Please provide us with your feedback, comments, and we’lll be happy to clarify any of the issues that are still not clear or answer any questions. Thank you for watching.

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Welcome everyone this is Amer Mushtaq from You Counsel. Today we’ll talk about Holograph Wills in Ontario. We’ll discuss what are the fundamental requirements of creating a Holograph Will and what are some of the circumstances in which a Holograph Will may not be considered valid.

We begin with our usual disclaimer, that this course is not legal advice, so, if you have any specific questions you must contact a lawyer or contact a referral service – the Law Society of Upper Canada.

We’ll begin our discussion with talking about succession Law Reform Act. This is the legislation that governs the laws relating to succession. We’ll talk about Holograph Will, how is it defined in this legislation. We’ll talk about the basic requirements of the Holograph Will, we’ll discuss when under what circumstances a Holograph Will may not be considered valid, and we will end with some of our recommendations with respect to Holograph Wills.

Succession Law Reform Act is an Ontario legislation, if you are in another province, you must look at your own legislation, which by the way could be quite different than the legislation in Ontario. So, you want to make sure that you look at the right legislation and then understand what is contained in that legislation with respect to succession. As the name implies, succession Law Reform Act relates to laws relating to succession. Let’s look at the Succession Law Reform Act in Ontario. You type, “Succession Law Reform Act” in Google and you will find this legislation it’s available, and you will notice some of the topics that it covers. It talks about Testate Succession, Intestate Succession, Designation of Beneficiaries, Under Funded Plans, Survivorship Rights, and Support of Dependents.

So, one of the common misconceptions that is out there for people who do not understand the succession laws in Ontario, is that some people believe if they pass away without a will their estate, their property, will go to the state or the government and not be passed on to that person’s beneficiaries. That understanding is incorrect and as you can see, there is part two that deals with Intestate Succession, meaning that someone who has passed away without a will, without a valid will, what happens to their property, what happens to their assets? And that is governed under this part. And if someone who has died with a valid will that is covered by part one of Testate Succession. So, all of this is covered in Succession Law Reform Act, by all means, check out this legislation to get a good understanding of the laws relating to succession.

Now, a will is governed under Section Four, you may want to look at Section four of the S.L.R.A. let’s look at that. And it states that, “subject to Section Five” … and Six and we’ll talk about Section Six shortly … “a will is not valid unless at its end it is signed by the testator’s or by some other person in his or her presence, and by his or her direction. The testator’s makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time, and two or more of the attesting witnesses subscribe to the will in the presence of the testator’s”. What I want you to focus on in this specific section, is that the requirements of how a will is executed are very specific, and if you do not follow the requirements in their true form, then the will may not be considered valid. And I’ll give you an example with respect to Section Four, Sub 1, Sub B. Which says, “that the testator’s makes or acknowledges a signature in the presence of two or more attesting witnesses present at the same time”. So if, at the time, when the testator is going to sign, well the witnesses were present when everyone when people were reading that will and testator was reading the will. But when the testator is about to sign let’s say one of the witnesses goes to the washroom, and he is not present at the exact time when the testator was signing and then comes back, that will may not be considered valid. Because when the testator signed the document, signed the will, the two witnesses were not present at the same time.

So, it is not okay for the testator’s to sign in the presence of one witness and then that witness comes back and then subscribes his attestation, that’s not okay. So, the requirements are very specific with respect to Section Four, but it allows to create wills under Section Six. And Section Six is really Holograph Wills and we’ll talk about Holograph Wills.

Let’s scroll down and read Section Six, Holograph Wills. A testator may make a valid will wholly by his or her own handwriting and signature without formality and without the presence attestation or signature of a witness. So, that’s Section Six, and let’s break it down, so that you have clarity with respect to what a Holograph Will is.

Number one, it has to be wholly handwritten from top to bottom, it must be written in the handwriting, and the handwriting must be that of the testator, it cannot be that of somebody else, it has to have the handwriting of the testator. Okay, you do not require any witnesses, you do not require any attestation, and there is no other formality, as long as it’s handwritten by the testator and signed, there’s no other formality. So, it’s seems pretty straightforward but there are circumstances in which a Holographic Will will not be considered valid and let’s look at some of those circumstances, so, you get an understanding of how important it is to create a Holograph Will properly.

Partially handwritten Holograph Wills will not be considered valid. As I said from top to bottom it has to be handwritten will in the handwriting of the testator. And I’ll give you an example, with respect to the fill in the blanks forms, you may get a form from a shop that contains a will package and it contains fill in the blanks and all you have to do is fill out those blanks and then sign it and then you may assume that because I have fill in the blanks in my own handwriting, it will be considered a Holograph Will, that’s not correct. It has to be completely handwritten; filling out the blanks in a form will not make it a Holograph Will.

So, what happens when you have indeed filled in the blanks in a form when a court is reviewing that Holograph Will? What a court will do is it will sever the hand written portion of the will from the typed portion. So, assume that the typed portion is expunged, it doesn’t exist and the court will simply read the handwritten portions on their own. And if the court is able to determine the final wishes of the testator from those handwritten portions alone, then the court may enforce that portion as Holograph Will, but typed portions will not be considered, so, that’s how the court may treat a will that is created by filling in the blanks.

What about a situation when your handwritten Holograph Will refers to a typed written document? So, for example, your handwritten will states that, “with respect to my property in Muskoka, go open my drawer, and then you will see a document that states who that property goes to after my death”. Now the Holograph Will is referring to a typewritten document or is trying to incorporate wishes from a typewritten document – that’s not okay. A Holograph Will needs to stand on its own and you cannot incorporate a typed document in a handwritten will.

What about the placing of signatures? Normally, it is common sense that when you have completed the document, you fix your signatures at the end of the document which will be the case in Holograph Will, but there may be circumstances in which the testator has already written the Holograph Will and signed it and then the testator realizes that there was some property that he or she did not talk about, and then after the signature, the person writes down his or her wishes with respect to that property that will not be considered a valid part of the Hologram Will because it is after the signature. So, any wishes that are contained in the in the Holograph Will, they must end and then followed by the signature of the testator.

What about handwritten alterations to a typed will? A testator may have a good complete typed will that is properly created under Section Four of the S.L.R.A. A few years ago and prior to the testator’s death, the testator decides to alter some of the some of the wishes in the typewritten will. So, it may appear to the testator why not to simply alter in his own or her own handwriting the wishes because everything else is contained in that will, and it was properly executed so, it may be easier for the beneficiaries and everyone else to implement those wishes. But the problem with that is, that handwritten alteration is not a Holograph Will, it will not be treated as Holograph Will. So, what the testator’s must do is that the handwritten alterations must abide by the requirements of a typed will, which are contained in Section Four. So if they do not abide by the requirements of Section Four they will not be considered valid under Section Six of the S.L.R.A.

What about handwritten alterations to the Holograph Will itself? Any alterations that you make to the Holograph Will at the time that you had created the Holograph Will that will be considered valid. But what if the alterations are made afterwards at some time after the will was created? If those handwritten alterations are not signed, they are not initialed at least, or signed then they may not be considered valid. And the other problem that may arise with respect to the alterations of the Holograph Will is that the court may need to determine when those alterations were indeed made and how would the court go about determining that is a complicated issue. So, any handwritten alterations to a Holograph Will must also be signed.

So, these are some of the examples of when the things can get tricky with respect to Holograph Will and when it may not be considered valid. If you plan to create a Holograph Will you must keep these things in mind.

So, in conclusion. one thing that you want to carry from this lecture is that Holograph Wills are allowed, they are valid, as long as you create them in accordance with Section Six of the S.L.R.A. in Ontario. And if your circumstances require that creating a Holograph Will may be the only option, then you may not worry that your wishes will not be followed.

A word of caution that I do want to state here is that people fight over free money, free property, all the time. They fight over it for years and years. They fight over it until that free money or property is exhausted in legal fees and there are fights. So, there may be certain practical reasons why we must consider whether you want to create a Holograph Will or not. You do not want a situation where potential beneficiary who was expecting to be found in that will is left out and that person now challenges the validity of the Holograph Will and then all the beneficiaries are in this big fight about the enforceability or the validity of the Holograph Will.

Another practical implication you may want to consider is with respect to any institutions, that you may have to deal with regarding the enforcement of the Holograph Will. An example could be that if the Holograph Will states what happens to certain monies in a bank account, if you take a Holograph Will to the financial institution they will not sort of jump on it and give you the money right away, they may have their own legal process to look into it, because they may want some certainty from a court that that the Holograph Will is indeed valid… is indeed the last testament the last wishes of the deceased. So, you may end up as a practical matter, you may end up going back to the court anyways to get that seal of approval that the Holograph Will is valid and then you get it enforced with the institutions that are to be dealt with in that will.

So if it gets complicated if you think that it may be worthwhile for you to obtain legal advice with respect to your Holograph Will or even typewritten will I think it’s a good idea to get that legal advice. I hope that this gives you a good understanding of what a Holograph Will is, and if you need to create one how do you go about doing that. Please read Succession Law Reform Act if you need to understand a bit more, or contact a lawyer or a proper legal adviser if you wish to create a will. Thanks for watching.

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Welcome everyone this is Amer Mushtaq ,from You Counsel. Often times we see a scene in the movies that an employee is upset with his boss and in a restaurant and he gets frustrated, he takes off his apron, throws it on the ground and says to his boss, “I quit this restaurant” and he leaves. Now, if that’s the way the employee has resigned in the real world, is that resignation notice acceptable? What is the law about the enforceability of that resignation notice? Because in the real world, that resignation notice may be improper and may not be enforceable. So, today’s lecture is discussing the resignation, the resignation notices, the resignation notice period, when is a resignation notice okay, and when it’s not.

We begin with our disclaimer that this course is not legal advice, so, if you have any specific questions you should contact a lawyer, or a paralegal, or contact The Law Society of Upper Canada for their referral.

We’ll discuss specific questions about resignation notice. First question is that what happens when a resignation is given in the heat of the moment? So, our example of the waiter storming out of the restaurant by saying I quit, is that a correct way to resign and is that acceptable, that’s our first question. Second question is, what if you provide the resignation notice and the employer does not accept it? Is that possible, is that allowed, and how does the law deal with that situation? And the third scenario, we’ll talk about is you provide a resignation notice to your employer, you are still working during the resignation notice period, and within that resignation notice period, the employer terminates your employment and what happens to your resignation notice in that circumstance?

So heat of the moment resignation, one example I gave you was the waiter walking out. I can give you another example, a real example of a client of mine, who was employed as an Executive Chef for a company for a long time and one morning he had this very intense argument with his boss which culminated in the employee, the Executive Chef saying to the boss I quit or I’m resigning, and he puts his office keys on the table and he simply walks out of the office and goes home. And then this happens on Friday, Friday morning, and then Monday morning when he had had some time to reflect upon it, he called his employer and says he’ll be at the office later in the morning and the employer says, “no we have accepted your resignation don’t bother coming into work”. So, what is the law with respect to that situation that a resignation that is given in the heat of the moment … how does the law consider that resignation?

So, the law about a resignation, or any resignation is that the resignation must be clear and unequivocal … it must be unambiguous. So, clear and unequivocal that is the requirement for a resignation to be valid. Now, in order to determine whether a resignation is clear and unequivocal, the court when it looks at it is looking at it objectively and to determine whether the intention to resign was truly there with respect to that employee. And the court is also looking at the conduct of the employee to confirm whether the conduct also indicates the intention to resign. So, let’s go back to my client’s case, in which Friday morning, he says I quit, he leaves the keys on the table, very clearly says that he is quitting and he walks out. So, all of that indicates a very clear intention of resigning. But what happens over the weekend is because he was the Executive Chef and there were some catering orders that need to be looked after and there were other issues at the restaurant that needed to be dealt with, his junior employees at the restaurant were still calling him and he was providing instructions to them in terms of various recipes and dealing with certain service providers. And he was doing that all along on the weekend through text messages and phone calls. And then Monday morning, he sends an e-mail to his boss saying that he is going to the doctor in the morning and will be back at the office later in the afternoon. And, so, all of those actions suggest that even though he had tendered his resignation in the heat of the moment, he never really wanted to follow through and he was actually working on the weekend dealing with employers issues and he indicated to the employer Monday morning that he was coming back to work.

So, in that situation, the law will consider that this was not a real intention on the part of the employee to resign, his conduct indicates that he was upset and his comments that were made were made in the heat of the moment, but did not objectively indicate an intention to resign. So, there are tons of cases like that in the court that have been decided, where the heat of the moment resignations and that’s the word that’s commonly used for those kind of resignations, are not acceptable unless there’s a very clear conduct by the employee indicating that he or she is going to continue with this resignation notice.

So, for instance in my client’s scenario, if he had gone home on Friday did not contact his employer for over a week which is generally considered sufficient time to have your emotions cooled down and objectively consider or rationally consider your actions, and if he still did not show up at work and did not deal with any of the employment issues then that resignation notice may be enforceable. So, heat of the moment resignations are generally not enforceable, as long as they are followed by or they are related to the conduct that also clearly indicates an intention to resign.

Second scenario in which the resignation notice is not acceptable by the employer. I mean, imagine if you are working for a Mafia and you go to your boss and say, “hey I quit”, how would your mafia boss take that resignation notice? We also see the examples of that in the movies. So, in the real world in the employment law situation, the response to your resignation notice may not be similar to the mafia boss, but the option to resign without giving sufficient notice may not be available to the employees in the real world as well.

So a few scenarios in which the employer generally may not accept your resignation notice. One scenario is that the employer may turn around and say that you’re not providing me with sufficient notice and I’m not accepting your resignation. So, going back to our example of the restaurant worker who walks out by throwing in the apron and says, “I quit” and leaves right away, the employer may turn around and say “I have 200 guest who are sitting and they needed to be served, and if you walk out now, I will lose significant business I am not accepting your resignation you need to complete your shift and then I will accept your resignation.” So, insufficient notice may be an acceptable reason where the employer may say that the resignation notice is not acceptable.

Another reason why a resignation notice may be declined by the employer, is that if you provide too much notice. So, for instance you go to the employer today and say “six months from now I am resigning and here is my notice but I’ll come and continue to work for the six months” and the employer may believe that six months is too long a time for you to serve for your resignation notice, one week or two weeks, may be sufficient and so, the employer may not accept your resignation notice because it’s too long.

Another scenario could be that your employment contract may have a specific resignation notice that you may have agreed to and it’s not uncommon to have a resignation notice provided in the employment contract … that may indicate a specific time period and if you do not provide a resignation notice for that time period the employer may not accept your resignation.

One example that comes to my mind with respect to this resignation notice and contract, we were negotiating a contract for a client of mine who was being hired as a C.E.O. of a mining company. And the employer put in a resignation notice of six months in that employment contract, and the discussion that my client and I had was, I indicated to him that if he at any point decides to resign his employment with this company and finds another employer based upon his resignation notice clause in the contract, he will have to tell the future employer that even though they are hiring him, he cannot start working for six months because that’s the time period that he has to serve as a resignation for with the existing employer. And our point was that it is unlikely that an employer will wait for you for six months to begin your employment. So, our goal was with respect to negotiating the contract to have a more reasonable resignation notice period in his contract which in his case was about a month, and we considered that to be sufficient for the future employer and for the existing employer. So, contractual resignation notice, you are bound to follow as long as they are not breaching any of the statutory laws.

So, generally, why does an employer need a resignation? Generally speaking, a resignation notice for a specific period. When you provide resignation notice, the employer needs to substitute you, find another employee who can take over your responsibilities. Now, if you are a waiter working in a restaurant, maybe an hour, or maybe a day, or maybe two days, or a few days may be sufficient for the employer to find replacements, if there are other waiters generally available in the market to do your job. But on the other hand, let’s say if you are a specialized astronaut who has the specific skill of landing spaceships on Mars and you walk into one fine morning to your employer and say “I quite, I’m leaving now or I’m giving you one week notice and I’m resigning” now that one week or immediate notice may not be sufficient time for the employer to find a replacement, another astronaut around the world who can land at Mars the way, the kind of skill that you have, right? So, the resignation notice the concept is saying what is the reasonable amount of time that the employer may need to replace you. So, it’s not very dissimilar to reasonable notice of termination … although generally speaking, based upon the market place and based upon the employment laws generally speaking two weeks notice is generally sufficient in the cases, but if there is a very, very, specific reason that your resignation notice should be higher then the court will find a higher resignation notice.

So, what are the remedies if you don’t provide a proper resignation notice? The employer can claim damages against you. So, if you were required to work, let’s say you resign and you walk out of your job and the employer says “you should have given me two weeks notice” but you walk out immediately and the employer now has to hire some someone at twice the rate that the employer was paying you to cover you for the two weeks that the employer believes should have been the resignation notice, then that extra amount that the employer has paid maybe the damages that the employer may come after you for. So, there is a remedy available to the employer, if the resignation notice is improper and the employer is able to demonstrate that to the court, that the resignation notice you have provided was not sufficient.

So, the lesson that you want to keep in mind from this, is that once you resign that resignation needs to be accepted by the employer and once it’s accepted then you’re fine, if it’s not accepted then there is a potential that there maybe a claim for damages against you.

Let’s go to the third scenario in which you provide your resignation notice and you are serving your resignation notice period. So, let’s say you provided a resignation notice period of three months and you show up to work and then within a week the employer decides to terminate you, then what happens to your resignation notice period? So, the answer is quite straightforward, that if you are working through your resignation notice period and the employer terminates your employment then the resignation, effectively, now becomes a termination. And depending upon the scenario that termination could be a with-cause termination or a without cause termination. And as you may know from our other lectures, is that a with-cause termination is when you have done something so bad then the employer needs to terminate you immediately without providing you with the balance of resignation notice money or any money for your reasonable notice. So, in this case, for instance, if you are provided resignation notice and then you stop showing up to work, or you start coming in late and not performing your duties, and starts swearing at other people and things like that, that may be a reason for the employer to claim that you are to be dismissed with cause.

The other scenario could be that the employer does not need you to work the resignation notice period that you provided and that was a reasonable resignation notice, perhaps because an employer found another employee to replace you immediately and then the employer may decide to terminate you and that termination is without cause. But because the resignation notice is now converted into a termination, now, you have all the rights and remedies that you may be entitled to for a without cause termination. So, if you are entitled to reasonable notice on termination, then you will get reasonable notice, or you have a claim for reasonable notice. Or, if there is a contractual right that you have in your employment contract on your terminations then you may be entitled to that. So the important part and this is a real scenario that I have experienced with one of my employees who had resigned from his employment, given three months notice and then during that three months the employer decided to terminate him and walk him out and then they refused to give him the balance of the money for the reason for the resignation notice period and then we had a claim against the employer in which we were able to get that money.

So, this is a scenario that’s possible, the lesson you want to keep in mind is that during the resignation notice period if the employer terminates your employment then that effectively becomes a termination and resignation is out of the door and you are entitled to all the rights and remedies that you may have with respect to that termination.

So, what you want to keep in mind is that in the real world the scenario for resignation is not what you see in the movies, you want to give a clear unambiguous resignation notice. If it’s given in the heat of the moment you still have an opportunity to retract it within a reasonable time, if you regret what you said and come back to work and that may be acceptable. And if the employer does not accept it you may have grounds to seek reasonable notice of termination based on common law. Similarly, you have to provide sufficient notice and a notice that’s reasonable and also if there is a specific notice that is provided in your employment contract, then you need to follow that.

Hopefully that gives you an understanding of resignation and you’re not in a situation where you are involved in any litigation, with respect to the impropriety of your resignation notice period. Thank you for watching.

Show Notes:

N/A

Lecture Slides:

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Machine Transcription:

Welcome everyone, this is Amer Mushtaq from You Counsel. In the last few lectures, we have been talking about the process of starting or commencing a civil action in the Ontario Superior Court of Justice. We have gone through a couple lectures, I believe, one on explaining the basic steps that you are required to take to commence a Civil Court action in Ontario, and the second one was, I believe, on filling out form Information for Court Use form. So, today we’ll talk about the second step for the commencement of your court action which is preparing the Statement of Claim. So we’ll talk about what is a Statement of Claim, what goes inside it, why it is important. We’ll go through some of the basics so you can understand the concept of the Statement of Claim and understand its value in the court process.

We will begin with a disclaimer, that this course is not legal advice, so, if you have any specific questions please contact a lawyer or paralegal.

In our previous lectures we started with an example, it is easier to explain the process with an example, so, we came up with this scenario where Mary loaned $100,000 to John. John refused to pay back the money and Mary needs to go to court and get a court order or a judgment against John, so, she could get her money back. The two legislation that we have already discussed in previous lectures that are relevant important, one is Courts of Justice Act, and the second is Rules of Civil Procedure, which are regulations underneath the course of Justice Act. Both of these regulations statutes are available online, you can simply Google, and get these rules and the legislation and review, but we will give you a summary of how these rules are applied in this specific context of Statement of Claim today.

We’ve also talked about the steps to commence a court action, you’ll have to complete what’s called an Information for Court Use Form, you will have to prepare a Statement of Claim, and then you take two copies of the Statement of Claim, one copy of the Information for Court Use Form along with the court fees I believe is $220 to the court office and have your claim issued there. So, today we’ll talk about the drafting of Statement of Claim. With respect to drafting of the claim, obviously, the first step is you need to download the form that’s the Statement of Claim form, it’s available online … I’ll show you how to download it and then second step is you actually draft or write that Statement of Claim, then you print two copies and then you take it to court. So, let’s go to Google and see if we can find the form for Statement of Claims.

So, Rules of Civil Procedure form. All of the forms that relate to Rules of Civil Procedure are available online and we know from the rules that 14A is the form for Statement of Claim. I’ll open it, just to show you what does it look like. So this is the form for Statement of Claim and some information that’s already typed here stays there, you just keep it and then you add to your information. So, you will add in the general heading section here you will provide information of the plaintiff and the defendant. If you are the plaintiff, in this case, Mary Kosner is the plaintiff and the defendant is John Smith so will have that information, and then if you scroll down, you will put down the amount. This is the amount that if the defendant is unwilling to fight and believes that he, in this case, John Smith owes the money as claimed then he can pay the amount $100,000 and then some amount for the cost. This is the cost of preparing, so, you can put down a dollar amounts, and this is only if the defendant is willing to pay what the plaintiff is claiming. In most cases, the defendant will at least fight or negotiate with the plaintiff. Underneath there goes the date, the date of the issuance of the claim and then it is signed by the registrar and the address of that specific court, if its in Toronto then you’ll have the Toronto court address here, if it’s another court in Ontario, then another courts address will be here.

Over here goes the information of the defendant and underneath that we’ll talk about Rule 76. We’ll have a separate lecture on Rule 76, but in the previous lectures I’ve briefly explained that if your claim is for $100,000 or less, then you must commence your court action under Rule 76, so, this language is specific here. And then underneath that is the claim and so this is where you put down your claim, you write it down and complete this form so I’ll show you an example of a claim that I’ve already completed specific to our example, so, you can get an a basic understanding of what goes in the claim.

So, let’s go back to our slide. The main thing you want to remember is that your Statement of Claim is really the most important document in the proceeding and so, you want to make sure that you properly draft it and it contains everything that you need to get what you want out of the court. So, let me explain a Statement of Claim by way of what is it and why do you need it.

A Statement of Claim is a document which you provide to the court and the document states or document says “what is it that you want out of the court,” “what is it that you want out of the judge?” So, if you are asking to asking the judge to give an order of $100,000 or judgment of $100,000 against John then that’s something that you’re asking. So, you have to be very specific in your Statement of Claim to say what is it, what kind of order, what judgment are you seeking from the court, so, it’s called Prayer of Relief or Claim for Relief but what is it that you want from the judge or from the court? And then the second component is why. Why should you be given what you’re asking? In “why” you basically fill out your story, so, why is a statement of your facts, your side of the story, your version of the story that why you are entitled to what you are asking.

So, the contents of the Statement of Claim are obviously importance, so, I’ll go through some of the key features that you must keep in mind.

Item number one is that a Statement of Claim should have facts but not evidence and an example in our case is the fact is John borrowed $100,000 from Mary, so, that’s a fact. If John had sent a text message to Mary asking for the loan of $100,000 and then Mary sent the money, by you know, wire transfer and there are bank documents that prove that the wire transfer actually went through to John’s account those are all pieces of evidence. Those are the pieces of evidence that prove the fact that Mary gave $100,000 to John. So, in the Statement of Claim you are not putting down the evidence … all you are telling is what are the facts of your case and you will have another opportunity with respect to Affidavit of Documents or at trial to provide the evidence that will prove your facts but you must not put any evidence in your Statement of Claim.

Second important point, is that your version of facts, your story, should be in a concise form, it doesn’t need to be unnecessarily long or verbose. You should present your case in a concise manner.

Third point that you want to keep in mind is that the facts you want to tell in your Statement of Claim must be relevant facts. So, in this case, for instance, if Mary has, if Mary is a single mother with two kids that is not necessarily a relevant fact, so, you don’t need to put that. The case in this specific scenario is very simple, it doesn’t matter whether Mary has young kids or not, it doesn’t matter whether Mary is a single parent or not, if John has borrowed money and has not returned it, then Mary is entitled to it. So, having children, the ages of children these kind of things what kind of job Mary has, none of that is a relevant fact, so. you don’t need to put that in your Statement of Claim.

Similarly, you must plead material facts, so, facts that are material. So, these are the facts that you must prove in order to get the remedy that you’re asking. So, in this case a material fact is that John in fact borrowed money from Mary and so, it’s a material fact. The transfer of that money to John is a material fact. Whether John received that money as a loan or was it a gift that’s a material fact, so, you need to prove that it was actually a loan and it was not a gift to John and so, that’s a material fact. When was the money returnable, when was it due? That would be a material fact. So, those are the material facts, material facts are the facts that you must prove in order to get the remedy that you’re asking.

Now, in terms of the format each allegation that you’re making in your Statement of Claim must be in a separate paragraph as much as possible and then your Statement of Claim should have consecutively numbered paragraphs. So, let’s go to an example that I prepared here and see what does a claim look like. And I picked a very, very, simple … very basic example of a Statement of Claim so at least you can understand the concept.

The Statement of Claims could be very lengthy very complex depending upon the nature of legal and factual issues that it deals with, but we’re dealing with a very simple matter, so, that you can at least understand the concept. So, as I said, this is a Form 14A that I showed you and we typed in here Mary Kosner we wrote here she’s the plaintiff and then the cases against John Smith and he’s the defendant and then the rest of the verbiage is still the same as in the court form. And if you notice here, I’ve put in $2,500 for cost, so, if you pay the plaintiff’s claim which is it is talking to the defendant and twenty five hundred dollars for costs, which is in this case, we’re saying that Mary has incurred these many costs to prepare this claim, within the time of serving and filing your statement of defense you may move to have this proceeding dismissed by the court. So, that’s if the defendant is agreeable to paying what the plaintiffs ask for, in most cases that’s not the case.

Over here, as I showed you in the form, this is the place where the date is entered, generally speaking, you enter the month and the year and when you go to the court office physically the registrar will put in handwriting that day, that specific day of the month, but registrar usually fills out this information. You can fill it out if you’re going on the same date or you know which date you’re attending at the court office. This particular case is being issued in Toronto, so, you have Toronto’s court address, registrar who is issuing the claim will sign here there will be a signature of the registrar. Underneath it, you must have the defendant’s information, the contact information, the full address and if the defendant has a counsel then the lawyer’s information will go in there.

The first two sentences I showed you in the form and it’s here as well, this action is brought against you under the simplified procedure, provided in Rule 76 of the Rules of Civil Procedure, as I mentioned Rule 76 usually deals with matters that are $100,000 or less, there are some other conditions to be met but in this case because Mary loaned $100,000 and that’s the money that she wants back, she is issuing a claim under Rule 76, so, this language is required. If this language is not here, then the claim will be issued as an ordinary procedure and then process is slightly different. So, if you are issuing it under Rule 76 you must write that here.

Now, paragraph one is usually called the Claim for Relief, the Prayer for Relief, and in this paragraph essentially Mary is saying what is it that she’s asking the court to do. So, the plaintiff Mary Kosner claims against the defendant John Smith $100,000, which is what she paid and she wants it back, in trust and accordance with Courts of Justice Act. The Court of Justice Act allows for payment of interest from the date when the money was due back to Mary, so it could be either that date or it could be the date on which Mary commenced this court action, she can choose. There could be other interest if Mary, if the part of the agreement with John was that John will give the money back $100,000 plus let’s say 5% interest on that money, then Mary can actually claim that interest here, but this is sort of a very basic example that she’s claiming $100,000 and whatever interest she’s entitled to under the Courts of Justice Act.

Then item number three is cost. So obviously she is incurring some cost if she goes and consult with a lawyer, then the cost of the lawyer if she otherwise the disbursements, the cost of issuing the claim, photocopying, anything else, cost of service of the claim, so these are the costs that Mary is claiming.

And then item number four is a typical it’s a paragraph that you always include in a Prayer of Relief, which is such further and other relief as the honorable court deems yes. So, there may be circumstances when your at trial or before trial you wanted to add something with respect to your claim in terms of relief then you can leave that opportunity, this gives you the opportunity to ask that, and then the court may decide whether it’s appropriate, is it justified to give you or grant you that relief or not. So, this is sort of the Prayer of Relief.

And then comes the part where you’re telling your story and paragraph two indicates that the plaintiff and defendant two and three indicate the plaintiff and defendant both live in Mississauga, we’re assuming for the purposes of this court action that Ontario has the jurisdiction to deal with this matter and not another province or another country or another territory. So one of the things that the registrar will be looking at when reviewing the claim is to ensure that the claim has some relationship to Ontario. So, that’s why we have put in that both parties live in Mississauga.

And then some simple facts Kosner and Smith were childhood friends, which give the court a bit of a background in terms of why Mary lent $100,000 to John. And then, you provide on so and so date, Smith borrowed $100,000 from Kosner. We have put borrowing of $100,000, we have defined it as a loan, so, it’s with a capital ‘L’, and then you can use instead of repeating the loan of $100,000 you can simply say in the next paragraphs just the word “loan.”

And then Smith promised Kosner that he will return the loan by so and so date, Smith has failed to return the loan as promised and therefore Kosner is entitled to the relief that she’s asking. And then finally Kosner is asking the court to have this action tried in the city of Toronto, if that’s where she would like the matter to be dealt with. If she would like the matter to be dealt with, I believe in Mississauga then either it will be the Superior Court of Justice in Mississauga or Brampton I’m not to sure at this time, which particular municipality would deal with that. But those are, these are some of the basic facts and once you put those facts down, your Statement of Claim is ready … at the bottom, once again, you enter the date here and registrar will enter the date if you have not input here this is the date on which the claim is being issued, at this at this place you enter the plaintiff’s contact information.

And this is the back page of a Statement of Claim each court document has a back page which contains really the plaintiff’s information which goes here, the defendant’s information, again, the name of the defendant that goes here, court file number will be issued by the registrar and this will go here, and then at this place you will have the plaintiff’s contact information. So that’s essentially the Statement of Claim. When the registrar issues it the registrar will put a court file number here on the back page sign it, date it, and put a court stamp a Superior Court of Justice stamp in red here, and that indicates that the claim has been issued.

Okay, so, those are sort of the fundamentals of the same of claim we have in this lecture we have covered a number of rules that are relevant to the Statement of Claim essentially Rule 25 to 29 in the Rules of Civil Procedure deal with what the pleadings, Statement of Claim is a pleading, and so by all means check those rules out and you will get a better understanding of what these rules are.

Also we have specifically covered 25.01, 25.02, and 25.06, check those out. And once you have issued the Statement of Claim, you have the opportunity to amend it later if you wish to and there is a specific process specific procedure how you amend your pleadings or Statement of Claim and that’s described in Rule 26.

So, in essence, what you want to understand is your Statement of Claim is the most important document because what is contained in the Statement of Claim is really your claim and you cannot ask anything from the judge from the court that’s not already in your Statement of Claim. If you have to add something, you have the opportunity to amend the Statement of Claim, but the four corners of your pleadings of your Statement of Claim is really your case, so, it’s a very important document and you want to make sure that you draft it properly, it’s concise but it’s complete.

Also, you must know that depending upon what your case is, you need to understand or have a good knowledge of the underlying legal principles. On what legal principles is the court going to award you what you’re asking? In this case you know the legal principle is a Breach of Contract, there was a contract between the plaintiff and the defendant and the defendant breached that contract and so, she’s entitled to the monies right? So, it was a collection of debt scenario, but there could be other complicated situations in which you are dealing with and so, it is important for you to understand the underlying legal principles so, that you can draft your Statement of Claim properly.

And that’s why drafting a Statement of Claim may be one circumstance where you may want to seek legal advice either through a counsel, a lawyer, or a paralegal. And there are a variety of ways you can actually do that in this day and age. You can actually have a consultation with a lawyer or a paralegal prior to drafting your claim. Get an understanding of what needs to go in, what kind of legal principles you need to keep in mind, or you can draft it and then take it to a lawyer and ask the lawyer to review your Statement of Claim, if you don’t wish to retain the lawyer to draft the entire document. You also have the opportunity to retain a lawyer as a coach and the lawyer can give you advice on an as needed basis, so, those are called Unbundled Services. You have this ability nowadays to actually seek legal advice only to the extent that you need it. So something to keep in mind if that’s the direction you want to take, but the fundamental knowledge of what a Statement of Claim is about is important whether you are doing it yourself or whether using a legal counsel to help you out with that, because you will provide, even if it’s being done by a legal counsel, you will be the one providing all the facts to your counsel. And counsel ask you questions to make sure that he or she knows all of the relevant and material facts but a good knowledge, a good understanding that you may have about a Statement of Claim is always helpful.

Hopefully, this gives you a good understanding of a Statement of Claim or a basic understanding of the Statement of Claim, please send us e-mails or put some comments, so, that we can add more material and explain to you any specific issues that you may have in your mind with respect to Statement of Claims and then we’ll be happy to add that in the future lectures. Thank you for watching.

Show Notes:

Rules of Civil Procedure:

https://www.canlii.org/en/on/laws/regu/rro-1990-reg-194/latest/

Court of Justice Act:

https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/

Practice Direction Toronto:

http://www.ontariocourts.ca/scj/practice/practice-directions/toronto/

Lecture Slides:

Have a question about this video?

The team at Formative LLP has created a free discussion forum where anyone can post a legal question and get feedback from the wider audience of self represented litigants.  Join the discussion today!

Machine Transcription:

Welcome every one this is Amer Mushtaq from You Counsel. Today we’ll talk about Rules of Civil Procedure in Ontario Courts. And this lecture is really for the beginners who have no idea what these rules are, what is their purpose, where to find them, what to do with them, so we’ll cover those basic topics in this lecture.

Before we begin, just a disclaimer, that this course is not legal advice, so, if you have any specific questions please contact your lawyer or paralegal.

Procedural rules, that’s what they are. So, we’ll talk about what is their purpose how many categories of rules are out there, how do you find these rules, where they are, and then what is this beast called Practice Directions? Are they additional rules and what do you do with them where to find them?

There is a basic purpose of the Rules of Civil Procedure and that is to ensure that the process of a court action is fair. And, so what I mean by that is when you begin your court action, a claim against somebody, or you’re defending a claim that is issued by someone else against you, that matter at some point will eventually go to trial, the matter will be heard before a judge, and the judge will decide which party is right and which party is wrong. And it is important to ensure that by the time the matter is before the judge, a trial, all of the steps that have been taken by parties are leading to a fair process, so, that no side is unduly advantaged by any way or by any technicality to get to that. Because if the process itself is unfair, then it will be hard for a party to get a fair trial. So, this is all about process and these are codified in rules.

Let me give you an example of that, so, let’s say you commence a court action against a party, so, the process is you draft what’s called a Statement of Claim, you go to the court office, you pay the fees, the court fees, and then the court staff or the registrar will stamp that that claim and then assign a court file number and then issue it and sign it. So, that’s now a document in court records that indicates that there is a claim that has been issued by a party against certain parties or a party. Now, for a defendant who has to respond to that claim, he needs to have clear knowledge that a claim has been issued against him or her right, and so, how does the court ensures that that person will actually receive the documents … there is a whole process. There are rules that dictate how you can serve that claim. So, for instance, you know, if you put that claim in the mail at the last known address of that person, you know the address you put it in mail and you send it out and that person does not receive it and you go to the judge and say I have served the claim, I sent it by mail, if the person is not defending, I want you to grant me the judgment because that defendant is not here, right? And so, that may not be a fair process because there is no way to confirm or verify that the person actually received that particular claim. So, to ensure that the rules provide specific ways of how that claim can be served, so, that sort of an example of the claim which ensures that that person is actually received it and if at that point that person decides not to defend it then the court can proceed with awarding a judgment against that person.

So, those kind of processes and there are a large number of those processes related to claims and defense and how you serve them, how many days do you have to respond to it, and you know how do you do the examinations for discovery, how do you set matters down for trial? So, I’ll kind of review that briefly, so that I show you what kinds of rules are out there in the Rules of Civil Procedure but this is the basic purpose of these rules to ensure that there is fairness in the process.

Now, there are different categories of rules and so it’s not like you pick up one book and it says Rules of the Court and that’s all you have to abide by or you have to understand, unfortunately not. So, just to give you an example Rules of Civil Procedure in Ontario, which is what we’re going to talk about today briefly that’s one category of rules. Federal Court has its own set of rules and so, which may be different, which actually are different than Rules of Civil Procedure. Then Criminal Courts have their own rules. Small Claims Court has its own rules and they’re called Rules of Small Claims Court. Human Rights Tribunal has its own rule, so, depending upon which body, which court, which judicial body you are attending before, they may have their separate rules and so, you need to make sure ‘A’, you find what those rules are and then you understand them, you read them, and you comply with them. So, all these categories are there and then each province has its own rules … we’re talking about Ontario today and then Alberta would have its own Rules of Civil Procedure and British Columbia would have its own Rules of Civil Procedure, so, you need to understand those rules.

Okay, so focusing on Ontario Rules of Civil Procedure you know we’re going to talk about where to find them, what is this thing called Course of Justice Act, and what are the regulations, and we’ll just sort of briefly overview the rules.

So let’s go to Google and you type in, so you are at Google, and you have no idea where to find these rules so you type in the Rules of Civil Procedure, it’s already here. CanLii is this website that provides free statutes of the entire Canada, so, you can find all the statutes and regulations in there. So, let’s click OK. You go to CanLii’s website and then it will take you there. So, Rules of Civil Procedure RRO 1990, Regulation 194, I’ll come back to it to what that means, but these are the rules and you see there’s a table of content. The important point that I want to make, not really important for the purposes of you knowing these rules, but these Rules of Civil Procedure are essentially a regulation under a statute called Courts of Justice Act and I’ll show you in a minute what Courts of Justice Act is. But these are regulations made under the specific statute for your purposes for practical purposes, whether it’s Courts of Justice or whether it’s regulation, there all rules, so, they all are equally applicable and so you just need to understand that. Let’s look at the table of contents and I was talking to you about what kinds of things that the rules deals with, there’s General Matters, Parties and Joinder, so what are different kinds of parties and in a court proceeding it talks about that in these rules. Commencement of a Proceeding, a Proceeding is a court action or an application that you commence in court and that’s called a Proceeding. So, you know, how do you commence that Proceeding? Here I’m talking about Service, so, service has three rules how do you serve something, what are the timeframes and what not? It’s defined in these rules, if there’s no trial, how do you end a Matter or Disposition without trial? Pleadings, Pleadings are the court documents like claim and defense and reply and what not so, it defines what Pleadings are. Then Discovery, Examinations how these Examinations are conducted out of court. All of these rules are there, they’re fairly comprehensive they pretty much cover every single thing that you may have to deal with in a civil court and there is some rule regarding that, so you can you can find that out.

Let’s look into Service. Service of Documents I was talking to you about the Service of Statement of Claim, I was giving you an example. So here’s 16.01, Sub 1 Originating Process. Originating Process is like a claim or Notice of Application it’s defined in the rules you can find that. But an Originating Process shall be served personally as provided in rule 16.02 or by an alternative to personal service as provided in Rule 16.03. So, the rule is specifically saying that when you have a Statement of Claim, you have to serve it personally and then what does that “personally” means that’s defined in rule 16.02 or it could be served by alternative to personal service as in Rule 16.03 right? So, you go down to16.02 and it says Personal Service and then it goes on to define what a Personal Service. So, this is this is sort of a flavor of what these rules are and we will in further lectures, sort of pick on each rule and we’ll talk about it briefly so you get an understanding of what these rules are.

I talked about Courts of Justice Act; so, let’s quickly look at Courts of Justice Act as you go back to Google and you type in the Courts of Justice Act. Again, if you want to go on CanLii. There are different sources where you can find these rules, but CanLii is sort of what I try to use most. Primarily, because I like the table of contents, some of the websites don’t have table of contents and that makes it easier for you to review these websites through a table of contents.

So a Courts of Justice Act is a larger Act that deals with the Administration of Justice in Ontario and it talks about what kinds of courts are in Ontario, what is the Court of Appeal, administration of the courts how they are administered, appointment of judges and officers, court proceedings, so, all of these things are in the statute and if you notice this Part 4 talks about Rules of Court and this is where the Rules of Civil Procedure come in, there are specific sections in the statute that allows for the creation of Rules of Civil Procedure. Just quickly, look at courts of Ontario, so, we’ll see how many kinds of courts of there. Superior Court of Justice, Divisional Court, Family Court, Small Claims Court, Ontario Courts of Justice. They’re all these kind of courts and then Court of Appeal Ontario. So, all these kind of courts have specific purposes and you need to know which court your matter belongs to, you have to go to that court to that province, to that territory, to that municipality, to that region and then commence your court action in that regard. So that’s where that’s the process of finding them and I gave you an overview of these rules but by all means explore these rules look at them and find more about that.

So what on earth is Practice Direction? What are these, what is their purpose and where to find them? So, just so you know if it was not enough that the rules are so complicated they are for different provinces and then for different courts there are different rules. To make matters a bit more complicated, we have something called Practice Direction, so what is a Practice Direction? Practice Directions are issued by at least in Ontario, by a different Regional Court. So, there’s a Region of Toronto, there’s a Region of Peel and each region administers its courts differently.

And so, what happens why do we need Practice Directions? Because sometimes the Regional Courts requires certain tailoring of the larger Rules of Civil Procedure based upon, you know, how busy the courts are, based upon their system and what not, so they may have slightly different systems. So, based upon which region your case belongs to, you will have to look at the Practice Directions of that particular court which are in other words additional rules that the courts have provided and you have to follow them. So, you want to make sure that you understand the Rules of Civil Procedure and then you have understand the Relevant Practice Directions because those are really the one that may modify certain rules or explain certain rules or put additional rules and you need to follow those rules. So, that’s the purpose of Practice Directions and where to find them we go back to our friend Google. And let’s say you type in, “Practice Directions” you see here Practice Directions Ontario and there are other Practice Directions, you see Brampton, Court of Appeals, Newmarket you already see those options there, so, let’s look at Practice Directions Ontario. And you find this link OntarioCourts.CA this is I believe a government website for the courts, slash Superior Court of Justice slash Practice slash Practice Directions. So you click on that he link and then it has multiple things, Practice Directions, Notices and Guides, and you review those. So, let’s say you want to go to the Practice Direction you have brought a Civil Action or an Application or a Motion you want to make sure that you click on it and then you read all these rules and they’ll talk about different matters. Rules applicable to all Motions and Application if you are bringing a motion, you must read Practice Direction and understand what the rules are saying. So, this is what they are and you need to, now, you know where to find them, and you must read these rules and understand them. So, you need to know if you have a civil matter in Ontario then you need to sort of, read the Rules of Civil Procedure Ontario and then read up on Practice Directions.

So, in summary read the rules, understand them, and follow these rules because they are essential if you don’t comply with these rules there will be consequences and a lot of times could be negative consequences, serious consequences, so, you need to understand that. Regarding the last point follow the rules I just want to tell you sort of something from my own experience. When I became a lawyer many years ago and we were getting this lecture from a senior litigator, he was talking about the Rules of Civil Procedure and he posed as his question: what are these rules? And you know some smart ass lawyer said, “these are the Ontario rules and these are for the fairness of process” and he was like “okay, so what do you do with these rules” and the he had replied, “that you must understand these rules and follow these rules so that the process is fair”. And that’s where that senior lawyer interjected and said wrong answer, he said, “you want to understand these rules fairly well, but when you realize that the rules are not favorable to your client you need to learn how to go around them”. And that was an interesting comment. So it’s not that you break the rules, it’s not that you don’t follow them but if the if a specific rule is not in favor of your client, then you figure out how do you go around that rule to further your client’s interest. So, that’s an you know fortunately or unfortunately depending upon how you view the purpose of legal profession, but if you believe that the lawyers fundamental role is to advance his or client’s interest, then that sort of where you get these kind of interpretations of rules, which may be twisted bent in different ways and what not. So, something to keep in mind because whether you follow the rules appropriately, the other side may try to bend them and you need to be alert to these things.

Hopefully, this was helpful in terms of understanding some basic concepts about Rules of Civil Procedure, what we’ll try to do in the ensuing lectures is that we’ll try to pick up on some of the important rules. We’ll talk about it, what do they say, how do you understand it because there are these are sort of fairly complex rules unfortunately, not easily, not designed for everyday people in mind and so, we’ll talk about this in more detail and basically make it sort of a fair game, make it simpler for you to understand these rules.

So any comments, please write us, send us an e-mail, post your comments, like us on YouTube and we look forward to seeing you in the next lecture … thank you for watching.

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Machine Transcription:

Welcome everyone, this is Amer Mushtaq from You Counsel. Today, we’ll talk about Nanny Contracts in Canada and we’ll explain some of the basic Employment Law concepts, so, that if you are hiring or deciding to hire a nanny you have a basic understanding of what should be contained in that contract with that nanny. And conversely, if you are a nanny looking for an employment the concepts that we provide here are useful to you, so, you can understand better your employment relationship with your employer. The concepts that we’re providing here are very, very, basic, it gives you an overview of the relationship so you can understand in the Employment Law contexts, and then based on that you can develop contracts accordingly.

We will begin with the disclaimer that this course is not legal advice, so, if you have any specific questions with respect to your nanny issues or contracts you must contact a lawyer or another legal professional.

So we’ll begin with the basic concept whether a nanny is an employee or an independent contractor and what I want to explain here, is that the two are different categories … you may know about them or you may not but employee and an independent contractor are two very different categories. They have completely different rights, they have completely different protections, and they have completely different tax treatment. So, you need to understand when you’re hiring a nanny or being hired as a nanny, whether you are going to be an employee or whether you are going to be an independent contractor.

If you are an employee, then your rights are all of the rights that are under Provincial Employment Legislation. Those rights come to you as a default. So, if you are the employer you are trying to hire a nanny and you hire that nanny as your employee then all of their rights in your specific Provincial Employment Legislation would apply. In the case of Ontario, the legislation is Employment Standards Act 2000, and you can type that thing, that name, in Google and you can find out that legislation and read that. It’s a quite extensive legislation, it talks about all kinds of issues so it’s a bit of a complex piece of legislation, but at least when you read it, you will get a sense of what are the kinds of rights that an employee is entitled to. So, this legislation applies to all of the employees, so, it’s not … there are no specific categories for nannies but it applies to every single employee that works in Ontario.

Some of the things that you will find in this legislation will deal with the work hours, the scheduling, the break times, the free breaks, the unpaid breaks, vacation, vacation pay, public holiday pay, overtime hours, sickness pay, maternity leave, bereavement leave, all kinds of things that an employee is expected to go through during his or her employment they are dealt with in that employment centers legislation; and then those rights will be intact for the employee.

With respect to independent contractors, an independent contractor is not an employee. So, the relationship is really sort of a business relationship and the rights of an independent contractor and the duties are what’s in the contract. Whatever’s in the contract, that’s what is upheld when, there is a dispute between the employer and the independent contractor. So, independent contractor has no protections under the statutory legislation, Employment Standards Act 2000, doesn’t apply and any of the other provincial legislation they don’t apply with respect to an independent contractor.

Okay, so then the question becomes if you are the employer can you choose, can you decide whether you want to hire somebody as an employee or as an independent contractor? And the answer really is yes and no. The typical lawyer answer or the next answer I can give you is it depends. And what it depends on is really on the nature of the relationship that you establish with that nanny or if your nanny what kind of relationship are you establishing with that family. And with respect to how do you decide whether somebody is an employee or an independent contractor, we have a completely separate video on this, and I will encourage you to check that out, so, you can understand the difference between an employee and an independent contractor.

But very, very, briefly and I would really encourage you to review that video because that provides a fulsome answer. But very briefly, an independent contractor, in other words, is sort of a separate business, and what that means is the person and it doesn’t have to be a corporation, you could have an independent contractor relationship with an individual too. So I’ll give you an example, when you hire a plumber to come and fix your plumbing issues at your house that plumber is an independent contractor. Why, because the plumber knows how to do his job or her job, you don’t need to explain how to fix it, you don’t need to supervise the plumber, you don’t need to control the hours that he or she will spend fixing that problem. The plumber will bring his own tools, you know his own equipment, and he may actually run to Home Depot to buy stuff for you, so, all of these things indicate that the person is quite independent in the performance of the duty. And then when the plumber is done with your job, he may have another job lined up at some somewhere else, at somebody else’s house. So, what that means is the Plumber is not financially dependent on you to make a living on a day-to-day basis. So, you don’t have significant control over the plumber. So, that’s sort of an extreme example of an independent contractor.

But in nanny cases, you may have a relationship with a nanny, where the nanny is very independent. So, for instance the nanny knows what time to come to the house, and then when she comes over or he comes over, you hand over the kids and then you’re gone. And the nanny decides, you know, what kind of food the children are going to have today, what kind of clothes they are going to wear, are they going to go to a park, or are they going to go to somewhere else and all of that. So, if the nanny has a lot of flexibility and then maybe the nanny brings his or her own van and to take the kids around, so, that’s bringing her own tools. Maybe she’s buying other stuff for the children and gets reimbursed for those expenses. So, you can see how the relationship could be quite independent and then the nanny maybe part time and maybe helping out other families as well or maybe joint nanny for a few families. So, it could be an independent relationship even though you have hired the nanny to come and do certain specific tasks.

So, that’s what I mean by when I say the answer is yes and no and it depends it really depends upon the nature of the relationship that you are establishing. And what you want to know is that if you establish the relationship, which is independent contractor, you want to make sure that the law recognizes that relationship as an independent contractor. It’s not really up to you, it’s not really up to parties, because a number of government institutions have some stakes in how people are classified as an employee or as an independent contractor and the most obvious one is C.R.A., because when someone is an employee you as an employer deduct taxes and send it to C.R.A. Whereas if someone is an independent contractor they are responsible for their own taxes. Similarly, Employment Insurance Legislation with respect to an employee, if they work certain hours and they lose their job, they’re entitled to employment insurance or if they get sick they may be entitled to employment insurance, and similarly with respect to pregnancies and in other scenarios they may be entitled to employment insurance. But as an independent contractor you’re not entitled to any of those things, so that’s why you want to be careful in ‘A’, selecting what kind of relationship you want and then also making sure that the relationship is lawful.

One thing you can do is obtain an advance ruling from Canada Revenue Agency about your specific relationship and it’s not a complicated process. You basically write down the specific duties that that person, that nanny, will be providing to you and you figure out exactly how that relationship is going to be structured, and then you send that structure to C.R.A. and say we’re going to engage in this relationship … can you provide us a ruling whether this relationship, would you treat this relationship as an employment employee-employer relationship or would you accept the notation of independent contractor? And you can get that advance ruling and with respect to C.R.A. matters you can you can rely on it.

So, those are some of the things that you want to keep in mind with respect to nanny contracts. Few things that I want you to take away from this, is that it’s very important to have your contracts any contract, whether it’s nanny contracts or general contractor work for your house you should have those in writing.

A contract could be oral, you can agree to things orally but as you can imagine, with oral contracts it comes down to who said what, who remembers what, it becomes a he said, she said. But at least in written contracts there is something in writing and it’s somewhat easier to identify what was agreed upon. So, always make sure that there are contracts in writing. And also you want to make sure that whatever you agreed to in those contracts, the contracts must be signed before the nanny commences work. It cannot be that you have a nanny starting already started working for you and then you create this contract and have him/her sign that, you will have other problems with respect to the enforceability of that contract and will have probably a separate lecture on that, but any agreements any contracts that you signed with a nanny you must do so before you commence, before the nanny commences work for you.

So, hopefully this gives you a broader understanding of what a nanny contract is and the differences between the employer-employee relationship and an independent contractor relationship. We look forward to hearing from you about any specific questions you may have with respect to these legal principles and then we’ll be happy to keep building on this topic and provide more information.

I quickly Googled online to see if there were any nanny contracts and I noticed that there are few websites that may have some sample nanny contracts that you can look at. But the basic idea is you need to understand what kind of relationship you’re entering into and to make sure that relationship is in writing and the relationship is lawful, and you understand completely what your rights and obligations are with respect to that relationship.

Hopefully we’ll hear from you and then please look at our other video, so, you can get an understanding off the difference between an independent contractor and an employee. Thanks for watching.

Show Notes:

https://www.canada.ca/en/services/benefits/ei.html

https://www.canada.ca/en/services/benefits/ei/ei-apply-online.html

http://srv129.services.gc.ca/eiregions/eng/postalcode_search.aspx

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Machine Transcription:

Welcome everyone this is Amer Mushtaq from You Counsel. Today, we’ll talk about Employment Insurance Benefits and will provide you with a very brief overview of the types of benefits that you get from the Employment Insurance System and we’ll talk a little bit more about the regular benefits and when you are entitled to those benefits and how do you go about obtaining those benefits.

We begin as always with our usual disclaimer, that this course is not legal advice so, if you have any specific questions you must contact a lawyer or a paralegal or contact The Law Society of Upper Canada and in this case, you may contact Service Canada for further information about your potential Employment Insurance Benefits.

We’ll explain to you what the Employment Insurance Benefits are, we’ll explain what types of benefits you may be entitled to, then will get into our discussion about regular benefits, what are the eligibility requirements for you to get regular benefits, when to apply for regular benefits, how much benefits can you get, for how long can you get these benefits, and when and where to apply for regular Employment Insurance Benefits.

So, Employment Insurance Benefits is really a governmental program and what it does is it provides income support and unemployment assistance for eligible unemployed persons. It’s important for you to understand that not every unemployed person is entitled to Employment Insurance Benefits. You must be eligible for these benefits and there are different eligibility requirements, so, let’s look into the types of employment insurance benefits that are available.

Number one is regular Employment Insurance Benefits – this is the most common one. When you lose your employment are you entitled to regular benefits or not? Sickness is another category. If you are ill and you need some time off, you may be eligible for sickness benefits, you may be eligible for maternity, parental benefits, compassionate care benefits, parents of critically ill or injured children you may be entitled to certain benefits in that category. Fishing has a separate category where you may be entitled to benefits, and then developmental programs is another category. So, these are different kinds of types of Employment Insurance Benefits and depending upon your circumstances, you may be entitled to benefits under one of these categories.

Now each category has its own eligibility criteria and we’re not going to discuss all of these categories today but we’ll focus our discussion on regular Employment Insurance Benefits, which is the most common category and we’ll talk a little bit more about that category.

So, what is the eligibility requirement for regular benefits? First of all, you were employed in an insurable employment, it’s an important to underline the word “Insurable Employment,” so, what it means is that you and your employer were paying E.I. premiums to the C.R.A. and how you figure that out, you can look at one of your pay stubs and you will see that there will be an E.I. deduction in your pay and sent to C.R.A. and that indicates that those hours that you have worked are insurable hours. So, if you have any doubt, I mean the only reason why you may not be paying for E.I. premiums is if you are an independent contractor, actually that’s one of the reasons. So, you may be an independent contractor and may not be remitting premiums or your employer that you have contracted with may not be remitting because you’re not considered an employee.

But if you are in doubt or if you notice that the E.I. premiums have not been remitted from your salary, but you believe that you should be entitled to or you should have been entitled to E.I. benefits, then it’s always a good idea to check with Service Canada to make sure that you are still entitled to it and Service Canada can look into whether it was an infraction on part of the employer for not deducting your E.I. premiums. So, insurable employment is an essential category for you to be entitled to regular benefits.

Second, you must have lost your job through no fault of your own. So, this is the end of employment, termination of employment situation, where you have been terminated from your employment but it was not your fault. And what is no fault of your own, what is considered a fault, what is not considered a fault? Employment Insurance Act has its own definition of that, so, what a court may consider a fault or a cause, the Employment Insurance Act may have a different definition of that. So as long as you are covered under the no-fault of your own category under the Employment Insurance Act, you may be fine. So, one example I can give you is that in some cases when an employee is terminated with-cause by the employer and that with-cause is being claimed as a category under the common law or the courts you may still apply for E.I. benefits and you may still get them. So just because you have been found or the employer’s actions have been found to suffice the with-cause dismissal, it does not necessarily mean that you may not get Employment Insurance Benefits. Another situation could be that even though your employer has terminated you with-cause, you may dispute the decision of the employer and so you, should still apply for your E.I. benefits and claim that.

So E.I. and Service Canada has its own system, has its own process of determining whether the determination of your employment was indeed no fault of your own and you can go through that process, this process is separate from the court process. Now, another factor that needs to be kept in mind, is that you are without work or pay for at least seven consecutive days in the last 52 weeks. Obviously, if your employment is terminated you are not getting any pay or you’re not working and that is why you are applying for E.I. benefits. But one confusion that often arises in this category is that, let’s say you were terminated yesterday and that was the last day of your employment, but the employer has provided you with termination and or severance pay that may run for the next 10 weeks or so. Even though you’re not working, you’re still getting paid for those 10 weeks so you are not without pay for that 10 weeks period even though your last day of work was yesterday. So, in that case your eligibility begins after the money that has been paid to you for termination and severance is exhausted. So, often times employees who are terminated they’re confused about it but the major principle to keep in mind is that there’s no concept of double dipping, you can’t have both the E.I. and the termination pay or reasonable notice pay for the same time period.

Okay, so you must have worked for the required number of insurable hours this word keeps popping up again, insurable hours. So, there must be a minimum number of insurable hours that you have worked in the last 52 weeks of your employer, the last 52 weeks from the time you’re filing your claim, or the start of your last E.I. claim, so, if you had another E.I. claim let’s say maternity claim or sickness claim in the last 52 weeks, then the time period of 52 weeks begins, the insurable hours time period begins from the last E.I. claim to your next claim. So, that’s how the insurable hours are calculated.

You must be ready willing and capable of working each day, it’s important for you to understand that if you had been terminated but now you are ill for some reason or got into a car accident and are injured and are not capable of working each day, then you are not entitled to E.I. regular benefits. You may be entitled to some other benefits, perhaps sickness benefits, but you will not be entitled to regular benefits. An example of this, another example of this, could be when people are terminated they are on E.I. benefits and then they decide to go out of the country, let’s say to the Bahamas for a vacation, then they are not entitled for that time period to get E.I. regular benefits because they are not ready, willing, and capable of working each day.

You are also required to actively look for work during this time and you are required to have written records of all your job searches to prove that you have been actively looking for work. So, these are the eligibility requirements if you meet all of these requirements, then you may be entitled to regular benefits.

We talked about insurable hours. What are the number of hours that you must complete to be eligible for regular benefits? The insurable hours should be between 420 to 700 hours. And why is there a range? Because the number of hours that will apply in your case depend upon the regional unemployment rate and if you don’t know what is the regional unemployment rate in your area, you can go on this website, I have provided a link here, and you will see it under the description down in the YouTube video and you can go on that and find out, put your postal code and you’ll find out your regional unemployment rate.

So why this range? Because if the unemployment rate is higher in your region you may be required, you may be required to have less hours. So, if the unemployment rate for example is more than 13% percent in your region you may be required to have 420 hours to be sufficient to get the regular benefits and so, less the unemployment rate the higher the requirements are.

Also, remember that if you have a prior E.I. violation your requirement of the insurable hours may be higher and one example of E.I. violation is the example that I was giving you in the previous slide, that let’s say if you were getting regular E.I. benefits the last time and you went away to the Bahamas and you did not report to Service Canada that you are going away and you should not be getting your E.I. regular benefits for that time period and Service Canada finds out, and they will find out that you have been away and still claiming your E.I. benefits. Then you will receive a notice of violation which will indicate that you have to return the money for the time period that you are absent and that is a violation that will be on your record. So, if you have that violation or a similar E.I. violation in your prior history then the result of that could be that you may be required to have more insurable hours to be eligible for E.I. benefits.

Now, how much E.I. benefits what is the dollar amount of your benefits that you can get? It is not based on your needs or your financial obligations. If you have a house and two cottages and you’re paying a lot of mortgage it does not matter with respect to the calculation of your E.I. benefits. The benefits are calculated based upon your income and it is 55% of your average insurable weekly earnings or 55% percent of your weekly earning and it has to be of course insurable, and then you will get those benefits. And up to a maximum of $543 per week gross pay. So, there is a maximum limit of $543 per hour but as you can tell that the higher your income is, the more E.I. regular benefits you can get up to this maximum.

You can also get Family Supplement. This is an additional income that you may be entitled to and when would you get that kind of family supplement? If your net family income does not exceed $25,921 per year. Remember it’s net, meaning that after taxes, this is the money in your pocket. Family income, so not just yours but your entire family’s income after taxes. If it does not exceed $25,921 that’s one category, one requirement for you to get Family Supplemental Income and you have children and your spouse receives Canada Child Benefits. So, if you meet all these three requirements then you may be entitled to Family Supplement on top of your regular benefits and the amount of that Family Supplement depends on your net income, number of children you have, and their ages.

What is the duration of regular benefits? It is 14 to 45 weeks, so, again, it’s a range and why this range? Because again, depends upon the unemployment rate in your region. So the higher the unemployment rate is, the longer it will be the time period for which you may be entitled to regular benefits.

When and where to apply? So, there is a seven day waiting period if your employment ends yesterday you have seven days waiting period during which you have not earned any income or have not had a job and then you apply for your E.I. benefits. You must apply immediately … you should not wait. If you are in doubt in any situation, my advice is that you should apply for your E.I. benefits and then let Service Canada figure out whether you are entitled to those benefits or not, but if you are in doubt my suggestion is to apply. So why, because if you delay applying for your E.I. benefits for more than four weeks, there is a possibility that you may not even get benefits even though you may be meeting all the other requirements, so, it’s essential that you apply immediately. And you should also apply even if you have not received your record of employment, you should apply, have your file started with Service Canada, so, that once your record of employment is received your application is processed.

You can apply online or through one of the Service Canada offices by visiting them. I will suggest you do it online it is not complicated, and this is the website you go to, to apply online.

If you require more information about Employment Insurance Benefits, I’ve provided this link for the governmental website that has a very, very detailed information on their website that you can check that information out about other benefits. We will in our future lectures, try to give you a summary of each category of benefits so, that you have a larger overview of those kinds of benefits. I hope this was helpful and thank you for watching.

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Machine Transcription:

Welcome everyone this is Amer Mushtaq from You Counsel. In our previous lecture, we talked about employment insurance benefits in general, we explained to you some of the types of employment insurance benefits that are available, and then we talked specifically about regular benefits that you get after your employment has ended. Today, we’ll talk about sickness benefits. A lot of people are not familiar with sickness benefits, the eligibility criteria, the duration, the amount, so, we’ll cover those topics in today’s lecture.

We begin with our usual disclaimer that this course is not legal advice, so, if you have any specific questions you must contact a lawyer, or a paralegal, or the Law Society of Upper Canada and in this case you can contact Service Canada, for more information about your entitlement to Employment Insurance Benefits and Sickness Benefits.

We’ll explain to you fundamentally what are sickness benefits. We’ll talk about some other types of E.I. benefits just basically telling you what are the other types. We’ll explain to you the eligibility criteria for sickness benefits, some discussion about E.I. Sickness Benefits versus short-term disability benefits, if those are benefits that are available to you in your workplace. When to apply for E.I. Sickness Benefits, how much benefits to you get and for how long, and where to apply.

Employment Insurance Benefits for Sickness is also a government program and it provides temporary financial assistance for people who are unable to work because of sickness, injury, or quarantine. They are quarantined because of any medical issues and those are the three situations in which you may be entitled to Employment Insurance Sickness Benefits.

Some of the other types of Employment Insurance Benefits we have talked about briefly in the previous lecture, irregular benefits, sickness that we’re discussing today, maternity, parental benefits, and if it’s compassionate care, parents of critically ill or injured children, fishing, and developmental program benefits.

Let’s jump into the eligibility criteria for sickness benefits, the first condition as in all Employment Insurance Benefits is that you were employed in an insurable employment. And what is an insurable employment? It is easy to determine, you can look at your pay stub, and you will see that there is a deduction for E.I. Employment Insurance that indicates that you are working an employment that is insurable and the limited remittances are being sent to CRA. on this account. If you are unclear, you can contact your employer to make sure that you are in insurable employment. If you are self employed, you should know whether you are registered with employment insurance or not and making payments for the E.I.

Second part for the eligibility, is that you must meet specific criteria for sickness benefits, usually a doctor’s certificate that indicates that you are unable to work, and indicates the duration for which you may not be able to work is usually sufficient. You must obtain, before applying for sickness benefits, you must obtain a doctor’s certificate and keep it handy. It is not required to be submitted as part of the application but the Service Canada people may ask you to provide them a copy or to provide the original certificate. So, you must have it before you apply for your sickness benefits.

Third, eligibility requirement is that your weekly earnings, your normal weekly earnings have been reduced by more than 40%. Obviously, if you are unable to work at all then your income is gone down to zero, but there may be other circumstances where you may be partially working for a few hours here and there and so, your earnings has dropped significantly more than 40% and that is another condition you must meet to apply for sickness benefits.

And finally, you must have accumulated at least 600 hours of insurable employment during the qualifying period, that’s important. So, you have you are in insurable employment, you have accumulated 600 hours of insurable employment during the qualifying period. And we have explained what is a qualifying period in our previous lecture. But briefly speaking, a qualifying period is within the last 52 weeks, so, you must have 600 insurable employment hours within the last 52 weeks. But if you had applied previously for another E.I. benefit during the 52-week’s period and then the qualifying period is the period from the commencement of your previous benefits to the commencement or the application of the new benefits. So, 600 hours are required.

A quick discussion about E.I. Sickness Benefits versus Short-Term Disability Benefits Plan. You may be employed with a company that have their own group benefits plan through a third party insurer or by themselves and it may have Short-Term Disability Benefit, Long-Term Disability Benefits, medical benefits etcetera.

So, if you are unclear you must contact your human resources and find out whether you have a benefit plan that covers Short-Term Disability Benefits. You should also find out what is the available period for those Short-Term Disability Benefits. Most often, the Short-Term Disability Benefits are about three months, sometimes about six months. So, I have not seen a Short-Term Disability Benefits plan which is less than three months, it is possible but normally three months to six months is sort of, the general range. So, find out what is the duration of the available Short-Term Disability Benefits plan.

The requirement for Short-Term Disability Benefits plan, under the insured maybe different than the requirements under the E.I., so you need qualify separately if you are applying for Short-Term Disability Benefits plan. You should also contend the benefits amount, how much money will you get under Short-Term Disability Benefits plan. And then you may also need to consider your future medical needs if you have to go, if your circumstances, medical circumstances are such that you expect to be on long-term disability benefits later on, then you may need to consider as well because you may have to go on a Short-Term Disability Benefits plan first and then be eligible for a Long-Term Disability Benefits plan. So, it all depends upon what are the terms and conditions of the group benefits plan that your employer has negotiated with the insurer, so, you need to find that out either from your human resources or get the contact information of the third party insurer and then contact them and obtain that information.

So, the lesson or the item that you want to keep in mind with respect to E.I. Sickness Benefits and Short-Term Disability Benefits is that if your employer does provide Short-Term Disability Benefits, then ideally, you want to apply for Short-Term Disability Benefits and not E.I. Sickness Benefits. Based upon another factor that you want to keep in mind is that these benefits may be deductible, so, if you apply for E.I. Sickness Benefits and you have Short-Term Disability Benefits then those Short-Term Disability Benefits may be deducted. So, you want to make sure that you are clear about the availability of Short-Term Disability Benefits and your employment. If you don’t have an option to apply for Short-Term Disability Benefits, then of course, you can apply for sickness benefits under the E.I. program.

How much money do you get? It is not based on your needs, it’s not based on your financial obligations, and it is calculated on the basis of 55% of your average insurable weekly earning. So, the maximum amount you can get is $543 per week at present time. This may change if the legislation changes, but at this point, $543 gross income per week is the maximum amount. And if you’re making about $50,000 plus then you get $543 per week, but if your income is less then this amount will be less.

There is a one week waiting period, consider it a deductible period, in which you don’t get any sickness benefits, and the first payment of your sickness benefits you receive it within 28 days after you have completed your application. So, you have filed your application and all other documents that maybe required, they’ve all been submitted to E.I., and within 28 days of that, you will get your first payment.

Remember that all E.I. benefits are taxable income, so, the money you get, taxes are deducted and then you get that payment. Duration of sickness benefits is 15 weeks maximum, so, if for any reason you are ill for longer than 15 weeks you will not get any more benefits from the E.I. system.

When and where to apply? As I mentioned earlier, there’s a seven days waiting period but you must apply immediately, do not delay the application process. And if your record of employment has not been issued yet, you should still apply for it so that you’re application is in the system and it is being processed. You can apply online or by attending a Service Canada office near your home or near your place. Here are the two websites, one is for the application, the online application and the other one is general information about different kinds of benefits. I will put these links in the description below this video and by all means you can click on there and go to these websites.

I hope this gives you a brief sense of what are E.I. sickness benefits eligibility criteria and amount. And if you have any questions about any of the things that we have talked about today, by all means send us an e-mail or contact us and we look forward to seeing you in the next lecture. Thank you for watching.