Archive for December, 2017

Civil Practice Court Toronto – Purpose & Process [video]

Tuesday, December 26th, 2017

You must attend Civil Practice Court (CPC) in Toronto for some specific matters, such as scheduling long motions, long applications, summary judgment motions and urgent issues. The CPC has its unique processes that are explained in this lecture in simple terms.

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

Show Notes:


Lecture Slides:

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 everyone, this is Amer Mushtaq from You Counsel. Today will talk about Civil Practice Court Toronto, what is its purpose, why was it created, and what are the processes with respect to Civil Practice Court.

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

We’ll discuss what is a Civil Practice Court, why it was created, and we’ll talk about processes at C.P.C.

Civil Practice Court came into existence I believe in July 2015, and it replaced the Motions Scheduling Court which used to look after all kinds of scheduling for the court. How was it created? It was created through practice, direction, and Toronto Region, and if you have listened to my previous lectures you may know that Courts of Justice Act is the legislation that deals with different processes at courts and creation of course and whatnot.

And then under Courts of Justice Act we have rules of civil procedure that provide rules or process at courts in Ontario. And then underneath that you have Practice Directions for different regions, Toronto being one region, and so these Practice Directions further modify some of the rules with respect to that specific court.

So let me take you to the Practice Direction that deals with Civil Practice Court, this is called Consolidated Practice Direction for Civil Actions Applications Motions and Procedural Matters in Toronto Region. And let’s see where it talks about Civil Practice Courts.

The Civil Practice Court right here. What is the purpose of Civil Practice Court? It’s defined in Paragraph 1: primarily the reason for the creation of C.P.C. was that there is a motion culture specifically in Toronto; the judges are booked months and months in advance for the motions, and sometimes the motions are not booked appropriately, sometimes they shouldn’t be before a judge, and sometimes they are not booked for the right time and whatnot.

So the Toronto Court decided that they will let a judge oversee the scheduling of these motions and applications, so that proper motions are dealt properly and where the court’s intervention is required, the court can intervene. Where a case can be managed or should be managed then that should be managed. So it’s an overseeing on the part of a judge to make sure that all the all the motions and applications and urgent matters are dealt with properly.

So what does C.P.C. do? So this is the link for the Practice Direction. C.P.C. deals with Long Motions, Long Applications, Summary Judgment Motions, and Urgent Matters. Four items you want to keep in mind.

What is a Long Motion – in Toronto, not anywhere else? Long Motion in Toronto you read underneath rules applicable to all the motions and applications, and over here you will see applications and motions before a judge or master that required two hours or less for all parties to argue are considered Short Applications or Short Motions. All parties, not just your side.

So if it takes two hours, or if you estimate that it will take two hours or less for the judge or a master to listen to the entire motion or application, then that’s a Short motion, a Short application. Otherwise it’s a Long Motion or Long Application. So if it’s a Long Motion, Long Application Summary Judgment Motion, or Urgent Matters as I indicated, then you attend Civil Practice Court, and that’s where your matter is schedule for hearing.

Now a quick point on Urgent Matters and Summary Judgment Motions. So let’s cover Summary Judgment Motions. Even if your Summary Judgment Motions is less than two hours you still go to C.P.C. and get your scheduling for that motion. Just because it’s two hours or less does not mean that you can go through a motions scheduling clerk and then get to scheduling, no. For Summary Judgment Motions you’ll have to go through C.P.C.

Similarly, for Urgent Matters, if you have an Urgent Matter that may need the attention of the court for 15 minutes, 20 minutes, half an hour, you will still not be able to schedule it through a motion clerk, because the motion clerk, when he or she will look at the schedules, the schedules will be booked before the judges for months and months in advance. So you won’t be able to, the clerk won’t be able to squeeze you in for an Urgent Matter. The only person who can do that is a C.P.C. Judge. So you will have to appear before a C.P.C. Judge and explain why your matter is urgent and who needs to address that and the judge will take care of that matter.

All of this is provided in the Practice Directions. I’m giving you a digest of all of this information. So what is the process? Step number one; you have to get an appointment at C.P.C. You can’t just simply walk in. So for that you will have to send a requisition to Civil Practice Court admin unit. So let’s see if I can find you a requisition. So there you go, a requisition to attend Civil Practice Court. I have already opened this form, let’s look at it. You complete this form; you check the boxes that apply. It’s requisition. Whether it’s an Urgent Hearing, Long Motion, you check those boxes and provide the court file number, estimate the time and all of that. And then you complete this form and you send it to or you use their fax number and you send it to them.

So step number one as I said is that you send your completed requisition form.

Step number two, you inform all the parties that are a part of your case that Civil Practice requisition has been sent, and if you get an appointment you advise them of what the appointment date is. Then on the date of the actual attendance you can attend C.P.C. by attending by video or phone or you can attend in person. So if you want to attend by video or phone there is a website called, I believe I have it open and let me show you. So this is the website It is a third party website, but you will see here, if you click on this link you will notice which of the Ontario and U.S. courts are the participating courts for CourtCall.

What is the beauty of this CourtCall? It’s that you can attend Civil Practice Court and maybe other matters, but specifically Civil Practice Court by video or audio from your house, from your office, and you don’t need to physically go to court. For it self represented litigants, this service is provided for free. For lawyers it’s a $65 charge per attendance. So it’s a very useful service because you don’t need to physically come to the court. And you can attend and there is no harm in not attending in person, the judges recognize the issues that they deal with at C.P.C. all the time, and so they understand that just because you are not physically present any chances of oral advocacy would not be diminished in any way. So make sure you benefit from this Civil Court Call system.

Or you can attend in person, and then when you are there you want to, when it’s your turn, you look at your number, when it’s your turn you’ll be called and you very briefly explain to the judge what is your case about. The judge will listen to it and then the judge will assign you an appropriate date based upon your case, based upon the timeline and whatnot.

So you have to, when you attend, there’s one important thing that you must take with you and it’s called a timetable. You need to carry a timetable with you; hopefully having consulted with other parties and then created the timetable. Let me see if I can show you a timetable that I’ve already pulled up. And this is also in the Practice Direction, there’s a link for that. You open that timetable you put in the information about your case and then there are different steps that may be necessary with respect to cross-examination, applicant factum and whatnot. So all these steps are listed and make sure that you have agreed to or at least prepared a timetable for the judge, so the judge can understand what needs to be done prior to the motion.

So you take all of that, and the point about explaining the case about it, you’re not there to argue your case. You are there basically to explain to the judge what the case is about, in maybe three sentences if you can, but not more than five sentences if I can say that. And the judge will get it, and then judge will understand what needs to be done, you’re not arguing your case.

So for instance if you’re bringing a Summary Judgment motion for a Wrongful Dismissal matter, you can simply say, “Your Honor of this is a Wrongful Dismissal case where the only dispute is about the amount of Reasonable Notice,” and that would be sufficient. So can anyone explain to the judge, the judge may have some questions and then the judge will grant you a time alongside a timetable that the judge finds is appropriate.

Now with respect to time with attendances C.P.C. in Toronto sits on Mondays, Tuesdays, and Fridays of every week, but I believe in summer, which is July and August I believe, for the next two months, it’s Tuesdays and Fridays. So you want to make sure that you know when and on what days does the Civil Practice Court sit, it’s not every day. Remember that it starts at 8:30, it doesn’t start at 10:00, you want to be logged in if you’re attending by phone or video, or be present there before 8:30AM so that you can check in.

You want to keep in mind that when you requisition, I know from experience in Civil Practice Court Toronto that if I send a requisition today I’m looking at two to three months’ timeline to attend C.P.C., not to have my motion heard, but just to attend. So the court is that busy, so you want to think ahead when you are booking for C.P.C. If you think that you’ll have to bring a motion which is going to be too long or are more two hours or more later down the line, you may want to book for C.P.C. sooner than waiting for that time.

So some of the things that you want to keep in mind is the timelines – how long does it take for you to get to C.P.C. When you get to C.P.C. when do you expect to get a motion date? And if it’s a motion or an application, generally speaking you’re looking at at least three or four months ahead of that, ahead of the day that you attend C.P.C., to get your motion. So you want to be careful and make sure that you are watching the timelines. Then you want to watch the timelines for the steps, for the remaining steps in C.P.C.

So for instance once your motion is booked you attend C.P.C. the judge gives you a date, you have that date, 30 days prior to that date you want to confirm to C.P.C. that you are still going to proceed with that motion; it is essential, because if you don’t do you may end up being in trouble and may end up even losing your date. So you want to be careful that 30 days prior to your actual motion you confirm with C.P.C. what’s happening with your case. Because a lot of times a lot of matters do get sorted out or get settled and the court needs to know that. You also want to keep in mind that you have only gotten a date from C.P.C. There are a number of other steps that you have to take. For instance if it’s a motion or an application you have to pay the court fee, you have to serve the Notice of Motion, the Motion Record and whatnot. And those steps I have covered in my other lectures with respect to motion scheduling, so you can review that. But you want to make sure that you do not, you have put in that much time and effort to get to C.P.C. to get a date for the motion, you don’t want to lose that date just because you missed a step. So this is important, the court’s extremely busy, and you don’t want to miss a step and then lose your scheduling time, so be careful about that.

Hopefully this gives you a sense of what a Civil Practice Court is, how can you benefit from it.

One point quickly with respect to the Urgent Matters, so let’s say if you have an Urgent Matter and as I said if you have to requisition a C.P.C. you will get two or three months ahead of time, so your matter is urgent. So essentially what you can do is, one way is that you just prepare your requisition form and then show up in the morning at C.P.C. court and then asked to be heard by the judge on an urgent basis and the judge will accommodate you; or you can go up to the 10th floor on 393 University and see a Civil Practice Court scheduling clerk or the admin staff or call them, and then tell them that you have an urgent matter that needs to be dealt with, and then they will accommodate you in the schedule in a C.P.C.

So just sending that e-mail or fax and hoping that it will be scheduled urgently in C.P.C. may not work, so you may need to take some extra steps to call the court, to go there physically. I actually for my last attendance where I needed an urgent motion, I actually physically went to the to the clerk and requested that I need to be accommodated, and I was accommodated for the very next C.P.C. appointment. So you want to make sure that you follow all those steps and take extra steps if your matter is urgent.

So hopefully this gives you a sense of the Civil Practice Court in Toronto. If you any questions or comments please contact us and we look forward to seeing you in the next lecture. Thank you for watching.

Basic Elements of Every Contract – For Beginners [video]

Tuesday, December 26th, 2017

Are oral agreements binding? Can you a binding contract which is unsigned? What about agreements by text message, Instagram, twitter etc.? This lectures provides the basic understanding of what constitutes a legal binding contract.

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

Show Notes:


Lecture Slides:

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 everyone, this is Amer Mushtaq from You Counsel. Many people do not have a clear understanding of what is a legally enforceable contract. Often times when I’ve spoken with my clients and I brought the issue that they were bound by a specific contract, they were at times in denial. Their responses or excuses were, for example, that “we had nothing in writing,” or “we had an agreement, but we never signed any contract,” and things of that nature. And so that led me to think that I should post a lecture video on what is a very basic legally enforceable contract so people have a clear understanding of when a contract, when an agreement, becomes enforceable. So today’s lecture is really about the fundamentals of a very basic legally enforceable contract

We began with the disclaimer that this course is not legal advice. If you have any specific questions, you must contact a legal professional

So are oral agreements enforceable? That’s always a question in people’s mind. What about unsigned written agreements? There were terms of agreement put on paper in writing but parties, one party or more than one party, did not sign the agreement: is that enforceable? What about agreements over text messages, emails, written on paper napkins – are they enforceable agreements? And the answer is absolutely yes.

For a contract to be legally enforceable it must have three components: an offer, an acceptance, and consideration. There are only a few exceptions in which case the contract will not be legally enforceable and we’ll talk about those exceptions but otherwise you have entered into a legally binding contract, which will be enforceable by the court. An offer, an acceptance and consideration – so let’s talk about what these three elements are.

An offer is simply willingness to do something. For example, I’ll give you a very basic example: “I will wash your car if…” So this offer of washing the car is the offer.

What is an acceptance? An acceptance is the exact acceptance of the offer. So, whatever was offered, if you accept that without any changes, without any modifications, then that’s acceptance. If you make any changes then that becomes a counteroffer and we’re not discussing that today. So, the exact offer that has been made, if that’s accepted by the other party, that’s called an acceptance. So, in our example, “yes, you can wash my car.” Simply the answer “yes” is sufficient to say that there is an acceptance.

And what is consideration? It is an exchange of value between parties, and the value could be anything. It could be money, it could be services or anything else. So let’s complete this example, and in this example we say that I will wash your car if you let me drive it for 15 minutes. So one party is saying “I will wash the car,” the other party is getting the benefit of getting the car washed, and the first party is getting the benefit of driving the car for 15 minutes so there is an exchange in value. One party gets the car washed, the other party gets to drive the car for 15 minutes.

So, when these three elements are present, a legally binding contract is in place. Offer is there, acceptance is there, and there is consideration, so this is a legally binding contract. And I’ve picked up this benign simple example to make this point, that even this small interaction, small exchange, is a legally enforceable contract. So, let’s say you had offered me that you will wash my car and I will let you drive it for 15 minutes and I said “yes,” we now have a legally binding contract. If you do not wash my car, and I have to spend $500 to get my car washed for example, then I have a claim against you for $500 in damages and that’s legally binding, that’s legally enforceable.

So what are some of the exceptions to oral agreements? Even though this exchange was not in writing, it wasn’t signed, it wasn’t on paper, it was an agreement and oral agreements are binding. The only exception to oral agreement is stated in Statute of Frauds. It’s a specific legislation in Canada. You can Google this name and you’ll find the legislation, it’s not very long.

And the Statute of Frauds really lists down certain categories of agreements that cannot be made verbally, cannot be made in writing. And the history, if you Google “the history of Statute of Frauds”, it arose where there were circumstances where certain frauds were occurring, and the legislatures at that time decided that the only way to avoid those kind of frauds was to ensure that parties entering into those agreements were doing so in writing. So one example of what’s an exception to all agreements is contracts relating to land: if you’re buying or selling any property that agreement has to be in writing otherwise it’s not enforceable because of the Statute of Frauds.

Creation of Trust, Conclusion of Trust…anything to do with trust has to be in writing, it cannot be done verbally, providing surety for somebody, someone else, that requires something in writing. Any contracts that were entered by a minor when the minor becomes an adult the minor has to, or the adult at that time, has to put that contract that agreement in writing and sign it and that’s how that agreement becomes enforceable, otherwise Statute of Frauds prevents those agreements to be enforceable. So those are really some of the exceptions and there may be a few more in the Statute of Frauds, but outside of that any oral agreement is as much binding as a written agreement.

Okay so what is it that you want to remember? Oral agreements are binding as long as the Statute of Fraud does not apply. Text messages, emails, Instagram, Twitter, whether these messages are signed or unsigned…if they’re agreements that are in place, which contain an offer and acceptance and consideration, those are binding agreements, those are enforceable. So when parties suggest that they had entered into an agreement but never eventually signed the contract therefore there’s no contract in existence, that’s not correct. As long as there is an offer, as long as there’s an acceptance, and as long as there is some consideration, the agreement is binding whether it’s in writing or not.

So keep in mind that those three basic elements, and sometimes it is difficult to imagine that those three elements would be sufficient and later on when you have changed your mind and not put those things in writing then there may not be an agreement. The law of contracts is obviously very complicated; this was a very basic lecture on explaining to you what could be a legally enforceable contract.

And you know the jurisprudence is filled with cases where you know what constitutes an offer is challenged, what constitutes an acceptance is challenged, whether there was an appropriate consideration or not, whether there were mistakes in contract, how do you rectify contracts? So all of that is already disputed in legislation in jurisprudence. But what you want to remember is that the basic principle of law, is that law wants to make people accountable, make people liable for the promises that they make to each other. So if there is a legally binding contract the law will make sure that it is enforced, unless there are other reasons for not enforcing it. And the reasons could be certain legislation; the reasons could be certain public policies etcetera. But fundamentally it’s the fundamental rule of law that people are accountable for their promises that they make to each other.

So hopefully this at least clarifies what a basic legal contract is, when it is enforceable and when it’s not. And we will keep adding more lectures to talk about some of the complex issues of Contract Law and hopefully that will help you understand the law of contracts a bit better.

Thank you for watching and please post your comments. We will appreciate it and any questions you may have please ask us and we’ll add those in our future lectures. Thank you for watching.

Obtaining a Default Judgment in Ontario Superior Court Step 2 [video]

Tuesday, December 26th, 2017

This is the second lecture on obtaining a default judgment in Ontario Superior Courts. It is a step-by-step guide to successfully bringing a default judgment motion.

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

Show Notes:


Lecture Slides:

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 everyone, this is Amer Mushtaq from You Counsel. Today, we are covering part two of our lectures on Obtaining a Default Judgment in an Ontario Superior Court. We have covered this topic in two lectures, we have already provided lecture one that covers step number one. So, we will cover the final step, step number two today.

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

We’ll begin with our discussion, we begin with what is a Default Judgment, and we’ll talk about these two steps Noting in Default and the Default Judgment motion. In our previous lecture, we have already covered what is a Default Judgment but, briefly speaking, you obtain a Default Judgment when the defendants have not filed their Statement of Defense within the time period prescribed or for some reason, their Statement of Defense has been struck out. So, in that case the plaintiff is entitled to obtain a Default Judgment and to do that, step number one is you Note the Defendant or to the Defendants in Default and we’ve covered that in our first lecture. We’ll jump on to step number two which is obtaining a Default Judgment through a Default Judgment motion.

You want to keep in mind that the Rules of Civil Procedure of Ontario apply to how you bring about a motion for Default Judgment, specifically Rule 19, but you also want to look at Rule 37, which deals with motions in general. In Rule 57, if you want to consider cost and other rules as they apply. Courts of Justice Act,which is the authority for the Rules of Civil Procedure is also relevant. But most importantly, you want to look at Practice Direction. And Practice Directions are directions of the courts of Ontario, based upon which region they are, and those specific courts may have their own practices or procedures with respect to how you bring about a motion, and you want to make sure that you look at that as well. So, for instance, if you are looking at a Practice Direction for Toronto, the link that I’ve provided, you go there, and you will see, let me at least show you where that link is. So , he original link that I provided when you click on it, this is the Practice Direction and policies for Ontario, and it’s divided into regions and depending upon where your case is you click on that region. So, if it’s in Toronto, you click there and you will notice that there are a number of Practice Direction that are provided guidelines and they are very, very important. You can’t especially with respect to timelines and stuff, if you miss these Practice Directions and do not follow, it will have grave consequences in terms of your motion being heard.

So, let’s look at Practice Directions and we’ll talk about it further, but that’s an important aspect of bringing a motion. So, before you bring a motion, you want to go back to Practice Directions and make sure that you are following all the processes.

Now with respect to Default Judgment motion, there are generally two things, two considerations that you want to have. Whether the motion should be brought before a registrar or before a judge, and then whether the motion should be in writing are should you bring your motion orally. So, with respect to a motion before a registrar or a judge, it depends what kind of claim you have commenced. The kind of claim you have commenced determines whether you are entitled to bring a motion before a registrar or you must bring a motion before a judge. So, I’ll explain that by way of an example.

If your claim is about seeking a judgment for unpaid debt, or if your motion is for a judgment for claiming liquidated damages, then your Default Judgment motion can be brought before a registrar of the court in writing and you can get that Default Judgment signed. So, what do I mean? In other cases, you must bring it before a judge, so, let me go a bit further. So, when I say that if your motion is, if your claim is for a debt, let’s say take an example, if you loaned $50,000 to someone and that person has not paid back the money in the time frame that was agreed upon, and you want to now bring a Default Judgment. You’ve brought a claim against that person and now you’re seeking a Default Judgment, then the amount of money is fixed. You have loaned $50,000, it’s clear on the basis of the claim that you have filed and the court will accept that as the facts. And so, there is no sort of leeway there, there’s no discretion for the court there, and 50,000 is owed to you, the defendant has not paid it, and so, you are entitled to a Default Judgment. So it’s pretty straightforward. The judge or the registrar does not have to make an assessment of what is the appropriate damages, the damages are pretty straightforward.

With respect to Liquidated Damages, what that means is, by way of an example. If you operate a business you provide some kind of services, let’s say contractor services, and somebody hired you to provide certain services for $70,000. The party signs a contract, you completed the work, you issued an invoice for $70,000 and did not get paid. So in this situation, there’s an invoice that claims and a contract that claims that you had done work for $70,000 and you’re entitled to that amount, and again the registrar or the judges will accept your Statement of Claim, the facts and your claim because there is no defense. And so it is pretty straightforward that because there is an invoice there and a contract there, you were entitled to $70,000, which has not been paid. So, that’s an example of Liquidated Damages.

So, in those cases as you can imagine, the process of providing you with a Default Judgment is rather straightforward. So, in these kinds of situations, you can bring a motion before a registrar in writing and get your Default Judgment. Another example where a motion before for a registrar is inappropriate, is let’s say, your claim is based upon sexual harassment or damages for some sort of personal injury. In that situation a judge will have to make a determination about what are the appropriate damages in your case. Whether $25,000 is sufficient, whether it’s $100,000 and so on and so forth. So, that is not a case where you can bring a motion before a registrar because a judge is the appropriate authority to make that assessment. So, you have to figure out before you bring your Default Judgment motion whether the motion must be before a registrar or before a judge. And if it is before a registrar, you should not bring it before a judge you should go to a registrar and obtain your Default Judgment.

So, if this is one topic that may get a bit complex so, if you are unclear about where should you bring your motion, then you may want to consult a lawyer and make sure that you are bringing the motion before the right person.

Okay, the next step is you can bring the motion in writing or orally … with registrar you always bring your motion in writing, so, you prepare your motion material and you file. And with respect to a judge, you can still bring a motion in writing, or you can you can prepare your motion materials, file them, and then attend your motion before the judge and provide your submissions in person.

Default Judgment motion in writing, as I stated, is rather straightforward, you prepare all the motion material, which I’ll explain in the next few slides. What that material is. You file it with the court together with the motion fees, and court fees and we’ll talk about that as well. And then you just wait for the court’s response whether you get Default Judgment or not.

This lecture primarily covers the motion, the oral motion and we’re talking about six basic steps that you want to keep in mind. Step number one is that for all motions, you must obtain a motion date prior to attending motions. So, you have to obtain a date when the judge is available, and then you book that date, it’s done through a motion requisition we’ll talk about it. Step number two, you prepare a Notice of Motion and you provide court fees and then you have to submit both of those with the court. Step number three, you prepare your motion record, we’ll talk about what it is. Step number four, you’ll have to confirm your motion a few days before the motion is to be heard, and it’s an important step and we’ll talk about it. Step Number five, you draft your Default Judgment for the judge, and we’ll talk about that. And then finally you attend at court and obtain your Default Judgment from the judge.

So, let’s get to step number one. Step number one, you want to make sure that you get a motion requisition form and that process is not complicated. You go to your web browser, go to Google and then type in, “motion requisition form”, there are motion requisition forms for motions for less than two hours and then more than two hours. So, you want to make sure that for a Default Judgment motion less than two hours will be sufficient for you, and so, you want to pick that form.

I’ve downloaded this form and I am providing here as a way of an example for one of the cases that I’ve done. I have taken out the specific information relating to parties. But you can see that this is the form, and you want to download it, you will fill out all these forms. There are certain nuances to how you fill this form and so, in my next lecture I will – sorry this is the wrong form – this is the Motion Confirmation form. Motion Requisition Form here it is. In a separate lecture I’ll explain how do you cater to the nuances of completing this Motion Form. So, for example, in this question you explain what kind of rules apply and you want to make sure that you cover all the rules that apply to your motion. So, this is the Motioning Scheduling form, you have to complete it, and what do you do with this motion form? You can either send it by email and this is the email address or you can fax it. or you can fax it to this number. And so, that’s one way of completing the Motion Scheduling Form and sending it so, that you get your motion schedule.

So, you fill out the form, you take it to the Motions Scheduling Court if you want to attend in person, or you either call make a phone call to the motion scheduling clerk, or email, or fax it. Now, if you make a call and you get the Motion Scheduling clerk on the phone obviously you will know the dates that are available. Clerk would like to know all the information that’s in the requisition form and then will schedule a motion date for you right then and there. If you’re sending an email or fax then, at least in Toronto, you should expect about three days for the motion scheduling clerk to respond to you whether your motion date has been scheduled or not. So, this is just the scheduling.

Looking at the schedule for the judges and their availability, you have now through these steps scheduled your motion and send the requisition form to the court.

Okay, step number two is that you want to make sure that you know what are the fees for the motion and you essentially go to Google and type in, “court fees Ontario” and you will get to this link that I provided here, and at that link, you will find the amount for the motion is provided. Let me do this exercise quickly with you and see we can get there. So, you go to Google, “court fees Ontario”. And you find that link, click on it, this covers all of the court fees. This is under the Administration of Justice Act. And let’s search for motion, and there you go. A Notice a Motion served on another party, a Notice of Motion Without Notice, a Notice of Motion for a Consent Order, $160. So that’s your court fees for the motion, make sure you have it handy, either in the form of a check, money order draft, credit card, or interac, and you take it with you.

And then the second item you have, is you must prepare what’s called a Notice of Motion, its form 37A. I’ve mentioned in the previous lecture, that you can find it on Google, you just type in, “Ontario Rules of Civil Procedure forms” and you will get to that form 37A. Let me show you what this form looks like I have taken one form out from one of my cases, lets see if I have it. So, right here, this is form 37A, you download it, and you fill it out. Provide the court file number, party’s information, this should be identical to what’s in your claim. And then you basically, the Notice of Motion is essentially what is it that you are asking the court to do? And so, you are saying, in this situation you are saying. “I want a Default Judgment against the defendants for ‘X’ amount of dollars”. And then you go on to explain what are the grounds for the motion, and you briefly explain that. You have commenced an action, you have served the claim, the defendant has not provided its defense, the defendant has been Noted in Default, so on and so forth. You are going to rely on the all of these rules. You are going to rely on and affidavit that you will provide and all of that. So, that’s the Notice of Motion.

So, when you have booked a motion date, you have 10 days in Toronto. Within 10 days you must prepare the Notice of Motion form and $160, and provide it to the court. If you do not do it within 10 days your motion date is vacated. So, it’s very important that as soon as you book the date, you prepare the Notice of Motion and file it. But 10 days is your limit in Toronto, it may be different in other jurisdictions … you want to check that, and then make sure that the form is filed.

Okay, step number three is preparing a Motion Record. So, a Motion Record is essentially a Notice of Motion, which you already prepared. You prepare an affidavit, which is Form 4D, and again you download the form and basically that is your affidavit, which says what is the evidence that you have. If it was a case, for instance, where you had provided a contract, parties have signed a contract, you have provided invoices and you didn’t get paid. Then you tell that story in your affidavit. The affidavit is sworn before a commissioner of oath, notary public or a lawyer and then that becomes part of your Motion Record.

You have to bind your Motion Record and it’s important for you to go through Rule 4.07, which talks about the colour. And Rule 4.07 tells you when you’re binding your motion material or any of the court documents that you must follow certain colours. So, let me quickly take you there. So, Rule 4.07, for instance, says, “Records of Motions applications blah blah blah, shall have a light blue back sheet”. So, these colors are important, because through these colors the judges and the court staff can easily distinguish what is the nature of you are motion or application or trial or whatever, or what is the nature of your documents right. So, you want to make sure that you follow that and then you file that motion record as soon as possible, but in Toronto at least three days before your motion. And this is a motion, Default Judgment motion is a motion ex-party meaning without notice. As I mentioned in my previous lecture, that the defendants are not entitled to any notice for Default Judgment.

Step number four, you go to Google, type in, “Confirmation of Motion form” and you download it, you get it ready, and you file it with the court. In Toronto, you must file the Confirmation of Motion form at least three days before your date of hearing. And if you don’t do that, you will end up losing your date. So, it’s important that you file the form within the time period. If you don’t do it, then you will lose it.

Let me quickly show you what that form looks like and if you know by this time how to fill out the Motion Requisition form then this is straight forward, but this is what a Motion Confirmation form looks like. And you must either send it by email or fax, I would prefer fax because then you have a fax confirmation, and if there is a problem with the court then you can show that you actually delivered that motion confirmation form.

Step number five, you prepare a draft judgment and the draft judgment, again, the forms are available form 19A,19B, or 19C depending upon what your case is and then you can use that form. I have prepared a Default Judgment form for one of my cases, so, its briefly here. It talks about court file number, you leave the judge’s name blank depending on who the judge is, put the date up there, and then parties names and whatnot. And you basically this is a judgment, you want to prepare the judgment and make sure that it’s accurately prepared, so that the judge, the only step that the judge takes is really agrees with what you have said and signs here. You don’t expect the judge to write all of this stuff for you and provide you with a judgment. You prepare the judgment in draft for the judge, present copies to the judge, and hope that the judge will agree with what you have written here. If not the judge may, for minor changes, the judge may cross out some of the some of the language and change it. But if it’s not prepared in draft form or it’s not phrased properly, then the judge may I ask you to go back and prepare it. So, this is a Draft Judgment that you can use, but you can download the forms and prepare it. Make sure you prepare three copies and present it to the judge, so that you get two copies and then you can have some originals that you’ll take further steps with.

Okay, now you’re ready to go and attend the motion, so you want to make sure that you know the place in time of attendance, you know the date now, so, now you want to know which courtroom you have to go, which address and whatnot. So, this is the website that I’ve provided, go check that out and you will find your specific case on that web site listed.

So, let me quickly show you what this website looks like. So, you go to the website that I provided, this is what the website looks like. You agree to the terms and conditions, enter. I want to show you how these motions look like, so, let’s see if I can get you there. I agree to the terms and conditions, agree to these, move down. And then if you choose the court which court is your case at, Superior Court of Justice, you choose the municipality, if you’re in Toronto, you choose Toronto. Type or line of business civil case, you do that. Court location, lets say its 393 University, and then validate. And then you submit, and this will take you hopefully to all the motions. I just want to show you, look at all these motions that are listed for, and this this website is updated daily for the next day. So, these are the motions for June 1st today. And look at all these motions that are being heard in 393 University Avenue, Toronto. I believe there are a few hundred. And there is reason why I want to show you this. The reason I wanted to show you that is because the time is important, there are many many parties who are seeking to attend a motion before the judges and before the court, and if you don’t follow the timelines that are prescribed you will lose your turn, and you will not be heard. So, you want to make sure that you follow those procedures properly. So, you check your court number and stuff, and then when you attend that morning you look at who the judge is, it doesn’t matter who the judge is, but it’s good to know who the judge is, and then you attend.

And then when you go at the court office, you check in with the registrar there you will be on a list, you look at the number three four five, you go over to the registrar, the registrar will have another form that you fill out, which basically talks about who’s attending, what’s your phone number, and whatnot. And then the registrar will call you based upon how the roster of that judge is that day, and then you attend and then you provide your submissions and hopefully you get your Default Judgment.

So, in conclusion, what do you want to keep in mind? The most important thing is you want to watch the timelines. Make sure you read the Practice Directions, make sure you read the rules, and follow them accurately. If you miss a deadline you lose your turn, so, it’s very important. Make sure you pay attention to the detail, because every little thing on that form or the forms that we have discussed is important.

And I want to emphasize very briefly that a good Statement of Claim is essential, because when you’re bringing a Default Judgment motion, the law is that the judge will accept the facts that you have stated in your Statement of Claim. Those facts are considered to be true and on that basis you get a Default Judgment, but if your Statement a Claim does not cover the facts that are required for you legally to get a judgment, you will not get a judgment. So, it’s important that your Statement of Claim is accurate and complete, so that you can get your judgment that you want.

We spent a lot of time, about 22 minutes on this, because I wanted to cover the entire motion in one lecture so you at least have it in one place, and as you may notice, that there are certain nuances to filling out the forms and stuff so what I’ll do is, I’ll pick each one of those for instance Motion Requisition form, maybe an affidavit, maybe we’ll pick the Notice of Motion and stuff. So, we’ll probably go through in future lectures and pick one document and then dissect it, so, that I can explain to you what are some of the important considerations. But this is generally how you obtain a Default Judgment motion. The steps are here if you follow those steps. Excuse me… so, if you follow these steps accurately and put in the effort to make sure that the details are looked after properly, there is no reason why you will not be able to get your Default Judgment.

If you have any questions or comments please feel free to contact us and we look forward to seeing you in the next lecture. Thank you for watching.

Mediation in a Civil Action in Ontario [video]

Tuesday, December 26th, 2017

This lecture explains: the fundamental concept of mediations in a civil action in Ontario, when mediations are mandatory, how mediators are selected and mediation are scheduled and attended. This is a basic guideline for someone who has not attended a mediation before.

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

Show Notes:


Lecture Slides:

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 everyone this is Amer Mushtaq from You Counsel. Today, we’ll talk about Mediations in a Civil Action in Ontario. We’ll cover some basic topics, basic concepts about mediation, and how do you go about scheduling and attending one.

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

We’ll cover the topic of what is mediation, we’ll explain when the mediation is mandatory, and how do you schedule and attend mediation in Ontario.

So, mediation, essentially, is an opportunity for parties to resolve their dispute without actually going all the way to trial, and you do that with the help of a neutral third party who can help you figure out your issues and see if there are any common grounds and then help you resolve that dispute. Mediation could be mandatory, or it could be voluntary. With respect to voluntary mediation, regardless of the nature of your dispute you can actually, if parties agree, if you and the other side agree that mediation is a good idea you can always schedule a mediation and then attend that. But in certain cases, the mediation is mandatory in Ontario, so, let’s talk about which cases are those in which the mediation is mandatory.

This is defined in Rules of Civil Procedure specifically Rule 24.1 which talks about mandatory mediation. And when you go through that rule, you will understand that mediation is mandatory in actions that are commenced in Toronto, Ottawa, or in Essex County. So, these are the three areas where mediation is mandatory. Let’s look at the rule quickly, rule 24.1, Mandatory Mediation it’s in Rules of Civil Procedure I just Googled, “Rules of Civil Procedure Ontario” and I get this. And then this talks about mandatory mediation, you will notice that this is the application of this rule and it says the mediation is mandatory in City of Ottawa, Toronto, Essex. And then there are exceptions to that, so mediations that are commenced, court actions that are commenced, or application that are commenced under Rule 75.1, which is state’s, litigation of state’s matters that are not are not covered in here. The other matters are the matters that are on commercial list, construction liens matters, bankruptcy, and insolvency, matters under the Bankruptcy and Insolvency Act. So, there are certain exceptions to the actions that are not covered under this rule, but most of the actions, civil actions that are commenced in Toronto, especially in Toronto, Ottawa, and Essex they are required, they are covered by the mandatory mediation rules.

Okay, so as I said, the mediation is voluntary in any other case, in any other jurisdiction and it’s up to the parties to see if they see the value of attending that mediation and then scheduling one.

Who is a mediator? A mediator as I said is a neutral third party. It’s a person who is not a judicial officer, a mediator does not work for the government, does not work for the Ministry of Attorney General, does not work for the court. He or She is a non-judicial officer, generally speaking, retired judges, sometimes become mediators, retired lawyers they become mediators. A lot of practicing lawyers, senior practicing lawyers, also practice mediation in addition to their own law practice. And then some of the non-lawyers are also mediators. These are individuals who have significant expertise in legal matters; they maybe have doctorate degrees in law but do not practice law or may not be lawyers in the Law Society of Upper Canada. So, the requirement to become a mediator is not that you have to be a lawyer, I think it’s the ability to bring parties together, that’s the crucial aspect of the, the crucial function of the Mediator.

Now, just from experience, known lawyers when they’re dealing with lawyers you know it’s such a sort of territorial thing, that sometimes it’s hard for non-lawyers to sort of break into the mediation world and be successful. Because of the nuances of issues, because of how the parties act, but the door’s not closed and I know a number of mediators who are not lawyers and are good mediators.

How do you select a mediator? You can go back to Rule 24.08 and that talks about how do you select a mediator and I’ll sort of briefly tell you what that rule states. First of all you can agree to, parties have to agree to a mediator, and they can agree to a roster mediator. A roster mediator, a roster is a list of mediators that is held by the mediation coordinator, which is a function at the court and that list has a number of names and you can look up that list, I believe it’s available online too, you can look up that list, find a suitable mediator and all parties need to agree that that person will mediate and that’s how a mediator is selected. That’s one way of selecting a mediator.

Another way of selecting a mediator is that you agree or parties agree to a mediator who is not on the roster of the mediation coordinator. And even then, that person can be selected as a mediator. In fact, most of the mediations that I attend in my practice, I think 90 to 99% of our mediators are not on the roster, these are private mediators and they get retained by parties. Simply because they are well known, they are well respected, and it’s easy for parties to agree on a non-roster well-known mediator. So, having said that, there’s not much difference, all mediators are equally good with respect to their function. Some know how to resolve disputes better than the others, but that’s a skill or it’s an art. It hasn’t much to do with the person’s legal knowledge or legal background.

Third option is appointment by the mediation coordinator. So, this happens when parties are unable to agree on and on a specific mediator and you know one party proposes certain mediators the other party rejects them and vice versa. And then at that time one party writes to the mediation coordinator at the court and says, “can you appoint a mediator?” and then a mediation coordinator is appointed, so, it’s kind of imposed by the mediation coordinator.

Now, how do you schedule mediation, again? It’s Rule 24.1.09, and it says that after the first defense is filed, you have 180 days to schedule a mediation. Let’s quickly look at that rule, so you are clear how a mediation is scheduled. A mediation session 224.1.09 Sub 1, “a mediation session shall take place within 180 days after the first defense has been filed, unless the court orders otherwise”. Why it says first defense? Because there could be multiple defendants and when the first defendant files his or her defense then the clock begins and then within 180 days you have to schedule a mediation. So, there’s a timeline and parties must follow that, and there are exceptions to that timeline and that’s provided further down in the rule. You know, one of the instances could be where it’s better to have mediation conducted after the examination for discoveries are done, or there is another reason why the mediation should be delayed. And that opportunity is there, but principally, the mediation must be conducted within a 180 days of when the first defense is filed. In my practice, in employment law, we are generally able to get a mediation date even sooner than that, sometimes in three to four months, depending upon the availability of parties and the choice of mediator.

With respect to location, normally, you schedule mediation at a neutral location these are owned and operated by third parties. A lot of court reporters in downtown Toronto and elsewhere, they provide a location that is available and then you can book that location. You can also attend mediation at the location of one of the parties … it is not uncommon, and as long as parties are satisfied that it’s not going to impact the actual conduct of mediation, then for cost saving purposes, you can actually attend mediation at another parties location.

Then you have to decide how long the mediation should be. Should it be half day, full day, depending upon the nature of dispute, you schedule the appropriate time. In a majority of employment law cases, half-day mediation, which is up to three hours is usually sufficient, and the matters usually get resolved, if they get resolved and if not then there’s no point spending longer than that. But in some instances, full day mediation is better and two parties can go ahead and schedule full day mediation. You have to keep in mind that scheduling of mediation, selecting a mediator, the cost of the mediator, the cost of the venue, all of these are shared by parties equally. So, if there are, you know, two or three parties in a dispute then all of them will share the cost of the mediation, and that’s why the cost of the mediator and the cost of location or venue plays, at times, a role in deciding which venue to attend and which mediator to select.

A mediator generally, sort of in employment law cases, a mediator’s cost could range from $1,000 to $3,000 or more for a half day of mediation. So, if there are two parties, then the cost could be half of that for each side.

With respect to now, the mediation is scheduled, the venue has been chosen, and another step that you have to do is you have to prepare a mediation brief and send it to the mediator and to the other side. A mediation brief is really sort of your argument why you should be given the remedy that you are seeking against the other side. It’s a bit of an argument, it’s a bit of a background of the facts, so, that a mediator can get a sense of what the issues are and he or she can make up his mind about how to go about resolving this dispute for the parties.

Rule 24.1.10, again, it’s in the Rules of Civil Procedure, it provides that parties must provide Statement of Issue. Statement of issue is essentially, you know, what is this case about? What are the issues that will be decided a trial? And what is each party’s position about those issues? You should also send a copy of your pleadings, which are the Statement of Claims, the Statement of Defense reply, to the mediator so the mediator can read those pleadings and get a better sense of what the case is about.

Similarly, you should sent other documents if there are important documents that help your case then you should also include those documents along with mediation briefs, so that the mediator can look at some of the evidence that is helpful in understanding your position and the corresponding evidence supporting that.

With respect to attendance in mediation, an important part is that parties who have authority to settle their disputes must attend or at least be available by phone. Majority of the mediators require that the person who has the authority to settle, to be physically present at mediation and that just because once you’re physically present at mediation you understand what’s happening, you are a witness to what’s going on, and then you are able to make decisions better. If you are off site and only getting information through your lawyer, then you may not fully understand, fully grasp what the mediator’s suggestions are, and what are the reasons for the mediator proposing certain things and so, you miss out an opportunity to properly settle a case because you’re not physically present. But in any event, the requirement under the rules is that the person who has the authority to finally say yes to a settlement should at least be available by phone and to confirm the settlement.

All the discussions that happen in mediation are confidential, they are without prejudice. And the idea is that you can openly speak your mind at mediation with hopes that the matter could get resolved. So, if you are, if you’re discussing something that can harm your case at trial you don’t want to hold back at mediation, just so that you could be harmed later on. So, the idea is you can have an open candid discussion at mediation and see if the dispute could get resolved and therefore, all the communication at mediation is considered without prejudice and confidential.

With respect to attendance and mediation, I often tell my clients to not come to a mediation with a fixed mind, because if you have a fixed mind about your case and you’re not willing to be flexible or move from your position, then the purpose of the mediation loses its value, the mediation loses its value. So, you have to have some open mind because you are attending mediation, you will hear perspective from the other side, which may not be that obvious from the pleadings. There are certain background facts that are not that clear in the pleadings and so, at mediation you are hearing some information through the mediator that you may not have known about. Or motivations of the other side for doing certain things that you may not know, and all of that could change your mind and should change your mind at mediation so, you should have some open mind at mediation. That is not to say that you completely fold your position, but have some open mindedness so, that you can understand the other party’s position better.

Mediators have different roles and different styles. Mediators job primarily is to help parties to resolve this matter, so, they will listen to your case, they will point at deficiencies in your case, they will do the same exercise in the other room with the other party, look at their case, point out the deficiencies, make some suggestions. Some mediators are too involved in all of this process; they are a bit more aggressive, they will take you to task if your arguments have no validity. Some mediators are more, sort of, laid back in that sense, that if you are making an argument that does not make sense they will raise it but not sort of confront you. So, every mediator has different style but their function is the same, all of these mediators are trying to resolve the dispute between parties, so that they can save their money and costs and get a resolution that, you know, the parties have control of as opposed to when you go to a judge and the judge decides at trial, then the parties have no control in terms of what the decision will be.

So, mediator’s function is to emphasize that parties have the control in carving a dispute that is acceptable, not the best solution, but acceptable to parties, so that they can move on. So that’s the mediator’s role and they have different styles. What parties, when they’re attending, they should keep in mind that the discussions that are happening in mediation, the settlement offers that are going back and forth they’re not in a vacuum. They are based on a certain legal framework and you will hear that from the mediator, what that framework is from your counsel, what that framework is, and then within the context of that framework the cases are settled.

Normally, at mediation, just so you know how physically the parties are distributed, each side is in a separate room. You and your lawyer will be in one room, the other party with their lawyers will be the in the other room, and the mediator will go back and forth between the rooms, take the offers come back with the offers, counteroffers, and try to resolve it. Because if you put all the parties in one room and they all are, you know, hard settled on their positions, then it’s hard for parties to come to an agreement. So, it’s sometimes it’s better to keep them apart and let the mediator do his or her job to sort of try to resolve the matter.

Sometimes, some mediators have this style that at the opening of mediation they have a joint session in which all parties are present in, which the mediator explains the process, and hears briefly from the parties and usually that mediation session doesn’t last more than 10 minutes. But the real stuff about mediation begins when the parties are sent to their separate rooms and the mediator goes back and forth and tries to resolve the dispute.

Keep in mind that mediator has no power to award any judgment, the mediator’s role is simply to facilitate, so, mediator cannot impose a resolution on any party. It’s a non-binding process. Where the mediator will make suggestions and what you want to keep in mind is that a mediator’s suggestions are very, very, important. Because you have received an opinion from your lawyer, the other side has received an opinion from their lawyer and a mediator is a person who is neutral … who doesn’t care about the outcome of your case, who has no stakes in your case, and who is a senior lawyer or a senior judge, or retired judge who has his or her own views about your case based on the information that they have received from you and they will provide an opinion to you. And that opinion should be taken seriously because it’s an opinion of a person who is not your lawyer but who is as close to a judge as you can get, before you actually go to a trial. So, you take that opinion seriously whether you accept it or not it’s is your call but at least you should consider that.

The second part about the opinion, which I normally tell my clients, is that even though they should consider a mediator’s opinion seriously, they should still take it with a grain of salt because the mediator’s ultimate job is to get a resolution. So, a mediator may put his or her opinion a bit aggressively, a bit too strongly and so, but at least you have that information and you can discuss with your lawyer in more detail, the points that mediator has raised so, that if there is another opportunity to resolve that matter later on, you can keep those points in mind.

So, what happens if your case settles and in a majority of cases it does, cases do settle. So, your case is settled, now you have to do some paperwork and that paperwork involves preparing minutes of settlement which basically states what are the terms and conditions of the settlement, what is the agreement, it’s reduced to writing parties sign it, and then if there are releases, one party’s releasing the other or there’s are mutual releases those are prepared and signed. So that the settlement is actually put in writing it’s signed, and the documents are binding, so that the end of the mediation process when a settlement occurs and obviously, if the settlement doesn’t occur then you move on to your matter going further towards pretrial and trial.

What is the conclusion, what you should keep in mind is that mediation is a very valuable step. The majority of the cases do settle at mediation, and in employment law situations, I can tell you that over 95% of the cases do actually settle in mediation. So, mediation is a valuable step and you should put in some effort and attending at mediation and making sure that you understand all the arguments and also you want to keep in mind that the value of mediation is with respect to cost/benefit analysis too. By the time parties get to mediation the costs are not significantly high and so, as soon as you’re out of mediation your costs can spike really significantly and so, there may be value in resolving your dispute at mediation.

I hope this gives you a sense of what mediation is about, when do you attend mediation, and how do you attend mediation with respect to your mindset and your strategy? If you have any questions or comments or if there’s anything further that you would like us to cover with respect to mediation or any other topic please do contact us and we look forward to seeing you in the next lecture. Thank you.

Employment Law Basics for Start-ups and Small Companies in Ontario [video]

Tuesday, December 26th, 2017

Start-ups and small companies usually focus their energies in establishing their business and sometimes ignore the importance of creating proper workplace policies. When issues arise later, as they always do, these companies end up wasting significant resources in dealing with these issues during a dispute resolution process. This lecture provides basic guidance for start-ups and small companies so that they can pay attention to workplace policies without breaking the bank.

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

Show Notes:


Lecture Slides:


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 everyone, this is Amer Mushtaq from You Counsel. Today, we’ll talk about some of the basic concepts of employment law with respect to small companies and start-ups in Ontario. If you are a small company or a start up, it is understandable that your main focus is to establish your business and grow your business and that’s where you are spending your time and money, and the workplace issues/workplace conflicts are really not at the top of your mind. What I want to tell you is that from, my experience, if you have not thought about workplace issues, if you have not established policies, until and unless you have replaced every single employee with robots or artificial intelligence, you’re not immune to workplace issues and they’re bound to happen.

And in most cases, when we’re dealing with small companies and start-up companies when they’re dealing with workplace issues, they are in a reactionary mode. When the workplace issue has already arisen and somehow they are in some sort of litigation or complaint process to deal with. And when you deal with those issues at that time, the cost in terms of time and effort and money is significantly higher than what you could have done at the outset if you had thought about it.

So, the idea of this lecture is how do you pay attention to employment law issues at the outset without wasting too much time, without spending too much time, and without spending too much money in dealing with these issues. So, we’ll talk about some of the basics, obviously, the recommendation is that as you grow as your business develops you want to focus more on workplace issues and develop more sophisticated policies and procedures, but at least you got to have something in place, so that, when you’re faced with employment law issues at the workplace you are able to appropriately handle them.

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

So, what are the key considerations we’ll talk about? We’ll discuss employment contracts, why they’re important, and what you should consider putting in employment contracts. We’ll talk about anti-harassment and anti-violence policies, we’ll talk about Human Rights policies, and we’ll talk about any other important policies that are essential for your specific workplace.

Now employment contracts, the first thing I want to emphasize is that when you hire employees, or independent contractors, or anyone else to work for your company, you must make sure that your employment contract is in writing. You also want to make sure that the employee or the independent contractor and/or anyone who is going to work under that contract has executed, has signed, has understood the employment contract before they have started working for you. The new employment contracts should not be a surprise for them, should not be something that they have signed after they have started working. We have a separate lecture on employment contracts … you should review that, but in this lecture we’re emphasizing that employment contracts are important, are essential they must be in writing.

And one thing that you want to make sure in your employment contracts that there is a termination clause, there is an exit clause. In your hearts of heart, you may have hired that employee or the contractor to work for your company for the rest of his or her life, for the rest of your life, but there are always circumstances when parties have to move in different directions. So, it is essential that your employment contract at the minimum has a termination clause, and that termination clause is properly drafted, it’s lawfully drafted, it’s enforceable, and it protects your rights appropriately.

Make sure that you’re not asking your accountant to draft a termination clause, and I’m not joking when I say that. I have dealt with a number of small companies start-up companies who rely heavily on their accountants for all kinds of stuff, including employment contracts which is fine, but that will get you into trouble later on when you have an issue. So, make sure that you have properly drafted termination clauses in your employment contracts at the minimum, that’s something that you must have. Obviously your employment contract will have some of the basic stuff like salary, and responsibilities, and hours of work and vacation, and whatnot, but you don’t want to ignore the termination clause.

Another part that you want to keep in mind is that if your business requires certain restrictions on that employee after they have left your employment, either because of termination or resignation, are there any restrictions that you want to impose on that employee? And the answer to that, is it really depends upon the kind of business you operating. Do you have genuine concerns about that employee competing against you? Do you have genuine concerns about that employee somehow taking away your intellectual property rights? Do you have genuine concerns about that employee soliciting your other employees or your clients? If your concerns are genuine, objectively then it will be worthwhile for you to have appropriate restrictive covenant which controls what an employee can and cannot do after that employee has finished employment with your company.

So, it’s important but it’s not something you should use if there is no value to it.

So, the key message that you want to carry from employment contracts is that it should be in writing, it must have a termination clause, and then you don’t need a 15-page employment contract. A 15 page employment contract if its not dealing with specific issues that are relevant to your company, that are important to your company, is actually going to come back and harm you. Because when the court will review that employment contract at a later stage they will come back and give comments and judgments which will not be helpful to you because you have gone overboard in drafting an employment contact that had no real connection to the employment relationship. So, your employment contract could be one page could be two paragraphs, could be one paragraph, it could be as simple as that, but you want to make sure that you have put in some thought into that employment contract …. it is relevant, it is reasonable, and it is signed by the parties before the contract is commenced.

Okay, anti-harassment and anti-violence policies, why I picked that as a second topic is because these policies are mandatory. As long as you are an employer under the Occupation Health and Safety Act of Ontario, you are required to have anti-harassment and anti-violence policies at the workplace, it’s not your choice, it’s mandatory. Now, if you have six or more employees at your workplace then those policies, anti-harassment, and anti-violence policies must be in writing. You have to provide copies of those policies to the employees, and in certain circumstances, you have to post those policies at different places in your workplace, and you have to provide training to your employees so, that they understand what are their rights and obligations under anti-harassment and anti-violence policies. So, it is important for you to understand what those policies are, what is their function, how do you implement those policies, and again, my point is that you don’t have to have elaborate books on anti-harassment and anti-violence policies, but these have to be policies that are thoughtful, that understand that harassment can arise in some circumstances at work. And then if it does arise, how do you deal with that, how do you investigate, how do you respond? And how do your employees, when they’re faced with some harassment or violence at the workplace, how do they go about complaining about this, how do they report it, and how do they look after their own personal safety and others safety? So, these policies are mandatory and you must have them in place.

Human Rights Policies. Human Rights policy, it’s not a mandatory requirement but considering the Human Rights issues that arise in the workplace it will be well advised that you have a written Human Rights policy in place. Human Rights policies obviously, I have seen Human Rights policies for some of the bakeries that I dealt with, and they had a Human Rights policy, which was literally two or three paragraphs. And it talked about the value of Human Rights in the workplace. It talked about the application of the Human Rights code, and it talked about the investigation process. So, if an employee is faced with a Human Rights issue how do they comfortably make a complaint about that? How is the investigation going to be held? And then how is that complaint going to be dealt with by the employers? So, those are some of the things that you want to cover in a Human Rights policy and then obviously, if you need to provide training to your employees with respect to Human Rights issues, that will be a good idea and then you make sure that you provide that training to your employees.

Now, other key policies, when I say the key policies that really depends upon the kind of business that you are in. So, for instance, if you are in a business where your employees are bringing their own devices, you know B.Y.O.D., bring your own device to work place, using their own cellphone, or laptops for company purposes, or using company devices also for their personal business, then sometimes it is important to have a privacy policy that clearly defines which part of data on the on those devices has privacy and doesn’t have privacy right. So, that may be a relevant consideration. If you are a manufacturing facility for instance then you may have, it is essential for you to have workplace health and safety policies under the Occupation Health and Safety Act.

If you’re dealing with a large number of customers, then you may want to have a specific code of conduct where your employees know how to deal with the customers, or vendors, or anybody else, or third party people at the workplace.

So, depending upon the nature of your business you may make certain policies, which relate to your business and you want to make sure that your employees follow those policies. So, those are some of the policies that you want to add into your workplace situation.

Now, what is the key message here? The key message you want to keep in mind is that when your workplace issues are being examined by a court, by a judge, by a tribunal, they don’t care about the volume of documents with respect to policies that you produce. There’s always an emphasis on substance over form. So, if you create amazing, prolific workplace policies that go in-depth about how these things are handled, but in reality those policies are not implemented, those policies are not cared for, then those paper documents will actually go against you. So, what court is looking for is really … have you given thought about these policies? Have you taken your responsibilities seriously? And then if you have, what steps have you taken with respect to protecting your workplace and protecting your employees? And so, when the court is looking at your policies with respect to your company, it is looking at your resources too. So, if you are a bank in Canada then the way the court will consider your obligations may be slightly different than if you are a dollar store in Etobicoke, right? So, the idea is that if you are a sophisticated employer, you are bound to have better workplace policies, more sophisticated policies, and make sure that they’re implemented properly. But if you’re a smaller employer, the purpose of all of these policies is to make sure that you understand your obligations, you understand your employees’ obligations, and you’re putting in some effort with respect to making sure that everyone’s rights are protected.

You also want to make sure that once you have listened to this lecture, you want to go and find some resources that help you in drafting those policies and in making sure that you’re on the right side of the law and I have given you a bit of a list here. There are sort of three key places that are provided, three links, actually four. One is for the Ministry of Labor Employment Standards Branch, one is for Ministry of Labor Health and Safety, Human Rights Tribunal of Ontario, and Ontario Human Rights Commission.

Let me quickly take you know those websites this is the Ministry of Labor website and I have already opened the employment standers page on it. And if you scroll down you will see it provides a resource your guide to the E.S.A. And if you spend some time reviewing this, this is not a very lengthy guide, but it provides you all of your responsibility is that you need to follow. With respect to posting certain posters that you are required to post, with respect to record keeping, with respect to payment of wages, hours of work, overtime, holidays, so, on and so forth. So, these policies are already there all you have to do is just review them and make sure that you are following.

Okay, this is the page for the Occupational Health and Safety Act and we talked about workplace violence and harassment policies. And those policies are available here, you can review the requirements for work place violence and harassment, how is it defined, what are your roles and responsible, and how do you actually go about creating those policies for your workplace?

Similarly, we have the Human Rights Tribunals of Ontario website. It provides its own resources; it has all the decisions that Human Rights Tribunal has made in different circumstances. So, you can review those decisions to understand how the Tribunal provides judgments on different matters.

You also have Ontario Human Rights Commission which provides a lot of training resources learning on their website. You can check the education and outreach section and it has a bunch of e-learning modules that are listed here, that you can review and understand the concepts a bit better.

So, this is the idea, that you review these resources, you put in some time and effort to make sure that your policies are in place. So that, if there is an issue that you’re faced with in the workplace, you have some framework in terms of how to deal with it, and your employees have some understanding of how to deal with those issues, how to bring them to your attention if they are faced with any of those issues that we discussed. Hopefully, this gives you a basic understanding of the fundamental concepts of employment law in a small workplace, in a start-up company and we’ll keep building on this and we’ll be happy to add more lectures.

Please provide us with your comments, and if you have any more questions please let us know and we’ll keep adding those in future lectures. Thank you for watching.

Disability Discrimination – Duty to Accommodate in Ontario [video]

Tuesday, December 26th, 2017

This lecture explains the fundamental concepts regarding an employer’s duty to accommodate in a disability context.

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

Show Notes:


Lecture Slides:


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 everyone, this is Amer Mushtaq from You Counsel. Today, we’ll talk about discrimination on the basis of disability and will use the context of employment, specifically, but the principles that we’ll discuss today apply in other scenarios under the Human Rights Code. This is an important topic because a lot of people have no clear understanding of what constitutes legal disability under Human Rights Code, so, we’ll explain that. And then we’ll talk about how that disability plays into employment relationships. So, we’ll cover those topics, let’s begin.

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

We’ll be talking about three things primarily. We’ll talk about disability definitions so you understand what are the circumstances in which a person will be considered disabled with respect to Human Rights Code? We’ll talk about Duty to Accommodate, which is an important aspect of disability, the disability profile, and disability spectrum. And we’ll talk about Undue Hardship, which is a term that is used in the Human Rights Code what does it mean and will explain that but some examples.

Okay, so, disability is defined in Human Rights Code we’ll cover essentially, it’s covered in many sections but we’ll specifically talk about Section 10 Sub 1, Section 10 Sub 3, and Section 17, and we’ll explain in that context the definition and the application off the law.

Let’s talk about the definition of disability. The common perception and the everyday perception is that a disabled person is the one who is either on O.D.S.P. be Ontario Disability Plan or C.P.P. Disability, Canada Pension Plan Disability … some sort of governmental disability or workplace safety and insurance plan disability, something of that sort. This is a person who may have a sticker for disability parking and that that sort of stuff. But that definition of disability is incorrect so we’ll talk about what is a disability under Human Rights Code.

Now, this is the definition, let’s go to the code and then I’ll explain it better over there. And let’s go over the definition in a bit more detail. Disability and it’s defined in Section 10 Sub 1 of the Human Rights Code, I have the Human Rights Code open here. Disability means any degree of physical disability, so, important part is “any” degree. Any degree of physical disability, infirmity, malformation, or disfigurement that is caused by bodily injury, birth defect, or illness and without limiting the generality of the foregoing includes diabetes, mellitus, epilepsy, a brain injury, any degree of paralysis, so on and so forth. So it goes on, it gives certain specific examples of disability. Then it talks about a condition of mental impairment or a developmental disability or learning disability, a mental disorder, an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety Insurance Act. So, if you notice here the definition of disability is quite broad, ‘A’ any degree of illness, disability of any kind can amount to disability under the code and so, it’s not just limited to people who are on disability plans.

What you want to understand also, is that disability includes past disabilities and presumed disabilities, and that section is, I believe is, Section 10 Sub 3 right. So, the right to equal treatment without discrimination because of disability includes the right to equal treatment without discrimination because a person has or has had a disability, or is believed to have or to have had a disability. This is important. So, if someone is discriminated against because that person had a disability in the past, then that could amount to discrimination too. And the second part is also important, the perceived disability. Even if the person did not have an actual disability under the code, but the perception was that the person had a disability and he or she was discriminated on the basis of that perceived disability, that perception, then that may still amount to discrimination.

So, you notice that the definition of disability is really really broad. And it does not have to be permanent disability, it could be a temporary disability, it could be a disability for a few days, for a few months, for a few hours, and if you have any of those conditions that were mentioned in the definition then you will fall under the definition of disability.

So, if a person has a disability then what happens? I want to explain one thing, which a lot of my clients and a lot of people don’t understand clearly. Sometimes people assume that if they have a disability they have unlimited rights, the employer cannot touch them, the employer cannot terminate them, because they have a disability, that is an incorrect understanding. There’s no unlimited right just because you have some sort of a disability.

And so let’s go to Section 17, which talks about this specific issue, about what are your rights under disability, are they unlimited or are the limited rights? So, let’s scroll down to Section 17 here. A right of a person under this act, so, we’re talking about Section 17 Sub 1. A right of a person under this act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability. Complicated sentence but what it means is that just because you have a disability does not mean that you have unlimited rights.

So, what you want to see is in the in Section Sub 2, 17 Sub 2, what is then the actual right if you have a disability, “no tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without Undue Hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding (if any), and health and safety requirements (if any)”. So, if you read these two sub sections what they’re trying to say is that, ‘A’ If you’re a disabled person your rights are not unlimited, and ‘B’ If you are an employer you have a duty to accommodate. So, there’s a duty to accommodate that disabled person, but that duty is up to Undue Hardship right.

So, the hardship on that employer on that entity who is employing a disabled person, the obligation is up to Undue Hardship. That means that it is not an endless obligation, it has certain limitations and those limitations are based on the cost and the funding and health and safety requirements of that workplace, of others, of that particular individual, right. So, the obligation is to accommodate a person up to Undue Hardship. Now when those factors are considered in reality, the most important thing is it’s an objective analysis.

What you want to remember is that the court, the tribunal will look at the employer’s resources. If you’re working for let’s say a chartered bank in Canada, then the court expects or the tribunals expects that they have better resources to accommodate a person with disability, than a dollar store which is owned by an individual and only has two employees, right? And so when the Undue Hardship is being considered, it is considered in the context of Undue Hardship for that specific employer right? So, what they will look at is the financial resources, the other programs that the person may or the entity may have, if let’s say the accommodation was meant to be temporary because the person was sick for only a month, are they able to have temporary help to cover that person’s duties by someone else? Are they able to do it, or are they in a situation where they can’t even function for a day without this person being present, right?

And, invariably, when you look at the cases, you will notice that it all comes down to essentially financial hardship. What kind of resources, financial resources, the employer has to accommodate that person? And if there are sufficient financial resources, then generally speaking, the court or the tribunal will say that you, the employer, have not accommodated this person with disability up to Undue Hardship. So, that is a criterion, it’s an objective analysis, it’s a relative analysis, it is employer specific. Obviously, it is in the context of the kind of disability that is being accommodated.

So, there are different examples, let me give you one example that came up in the in a recent case. This person suffered a back injury, he was not able to sit at it at his desk for a long period of time and his job was to work from his desk. And so, either he had to sit and stand and walk around. And so, this person needed certain ergonomic assessments for his desk and chair, and then he wanted the employer to provide a proper desk which could be moved up and down based upon his back circumstances at that time. And so, he should be able to work depending upon how much strain it puts on his back. And the ergonomics assessment had a cost, there would have been a cost for getting the desk that he would need and all of that. And so, in that specific case the employer had sufficient resources to undertake that assessment and to provide an appropriate ergonomic desk and chair for this individual, and so, it was that it was considered that it was not an Undue Hardship for the employer, even though it was a cost and they had to accommodate this person, it was not Undue Hardship and therefore, the employer was liable for providing those accommodations.

So, what you want to keep in mind, generally speaking, is that understand that the disability has a very, very, broad definition. It covers all kinds of whole range of illnesses, mental, physical, and so those are a part of the disability definition. You also want to keep in mind that statistically, Disability Discrimination is the highest in Ontario, of all the factors that are listed in the Human Rights Code. So, it’s something that happens unfortunately, too often, and so the more you are have an understanding of your rights and the more you have an understanding of your obligations, then you will be able to work in a work environment that caters for people with any sort of disabilities.

Hopefully, that was helpful in giving you an understanding of the requirements of accommodation for people with any disability and we will keep adding more lectures on this topic. I believe the next topic we’ll bring up is what are the kinds of medical information that the employer may be entitled to, with respect to providing you any accommodation. Okay, so thank you for watching, and we’ll come back to you with another lecture shortly.

Pressure to Sell and Employment Law Rights [video]

Tuesday, December 26th, 2017

It appears from the latest news that various bank employees are facing increasing pressure to sell various financial products to the bank’s customer, which has caused significant stress and anxiety to various employees. The lecture uses this scenario to explain various legal rights and obligations of employees and employers when the fundamental duties of an employee are changed.

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

Show Notes:


Lecture Slides:


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 everyone this is Amer Mushtaq from You Counsel. Today, we’ll talk about a topic, which has been in the news lately and you may have noticed that there has been discussions about bank employees facing significant pressure from their respective banks, respective employers, to sell different financial products to customers even though that may not be their primary role. And what is the impact of that pressure on their performance of duties on and on their mental health and other situations?

So, we picked this topic because it’s current and it’s relevant. What we’ll do is we will explain to you the different legal principles that are engaged in the scenario and we’ll explain to you different rights and obligations in this specific scenario, but what we’ll do is that we’ll expand that discussion to explain to you that if your duties are changed in similar ways, then what kind of legal principles come into play and then you get a basic understanding of the Employment Law application in this context.

Will begin with our usual disclaimer that this course is not legal advice, so, if you have any specific questions you must contact a legal professional.

So, the scenario is the basic scenario that we just talked about, that the employer is requiring its non-sales employees to sell certain products. And I use the word non-sale because if you are a sales person, then obviously your job is to do that – to sell those products. But what happens if you are training expertise and previous work experience is unrelated to sales … what happens in your situation when you are asked to sell certain products? And then not only the duties are added to sell products but there is a mounting pressure to deliver sales targets and then there’s a constant increase in those targets, so, there is a significant pressure.

This may also apply to sales employees too when their targets are significantly high and in some cases practically unachievable … then they may fall into this category too, so, both of those scenarios are being covered in this topic.

So, what happens if you are in the situation, what are your rights and obligations as an employer and as an employee? The first thing that you want to keep in mind is that as an employer, the employer has a basic implicit right to manage its own business, you know the employer is involved in that business for the purposes of being successful whether it’s a bank or any other manufacturing facility or any other employer, they have a right to manage their own business. So, when an employer is trying to sell additional products it may be because the competition is very high and the employer has to make additional efforts to continue to improve its sales quota.

On the other hand, the employee has an obligation to advance the employer’s business interests, so, this is a fundamental duty that is imposed on an employee that once the employee signs up to work for that employer his or her job is to promote the employer’s business interests. So, with those two fundamental rights and obligations we also want to explain to you that there are some additional rights and duties that come into play in this specific scenario.

So, one of employer’s obligations also is to provide work opportunities to its employees, I’ll give you an example of that. So, for instance, if you are a computer programmer specializing in, you know, some language and you were hired to do that job, it is the employers job to provide you with appropriate work. So, it is not enough for the employer to hire you, pay you your salary, give you your benefits, but not provide you with any work … just ask you to come in spend the eight hours and then go home and not ask you to do any work. Then that obligation is not fulfilled, because it’s not only that the employer has hired you, but the employer has hired you to do certain specific tasks and the employer is required to provide you with those opportunities. So, that’s an added obligation that is imposed on employers. And then there are cases that also suggest that not only that the employer has to provide work opportunities, but the work should be of such a nature that the employee should derive job satisfaction from that work. So, these are sort of significant duties, which are not explored in a lot of detail in our Canadian Jurisprudence, but they have been touched upon to the point that academics and legal scholars have at least discussed these duties in Canadian Employment Law.

So, when we say that an employer has an opportunity to provide work opportunities and job satisfaction in this scenario the sale scenario that we’re talking about, obviously, if the employee is conducting duties is performing work which it has no experience, no expertise that’s not what the employee was hired to do, then obviously it’s not the kind of work opportunities that the employee signed for. So, employer is in breach of that obligation to provide appropriate work opportunities. And similarly, the next step is that if the work is of the nature that is causing unnecessary anxiety and pressure and stress to the employee, then the employee may not be receiving the job satisfaction that he or she is entitled to. So, this may give rise to potential legal claims, which in the near future, we may see that Canadian law firms may commence some court actions with respect to these scenarios. So, I’m going to cover some of these legal claims.

The first one that is the most common one is called Constructive Dismissal. We have a separate lecture on Constructive Dismissal by all means check that out. But, essentially in a Constructive Dismissal scenario, what the employee is claiming is that, the claim is that you the employer have changed my duties fundamentally such that our basic employment contract is breached. Because I was required to do certain things and you have fundamentally change those duties and so our initial contract is breached and you are required to give me my severance or Reasonable Notice of Termination. And there are complications to that scenario but Constructive Dismissal is one avenue, which is commonly applied in explored in the scenario that I have explained to you.

Another cause of action another claim could arise from what’s called an Intentional Infliction of Mental Suffering. And this is sort of a tort claim, and what this means is that, whatever the change of duties in this case, specifically additional sales obligations and higher quotas that are unachievable, if that has caused the employee mental health issues either stress, anxiety or any other mental health problems such that employee has actually suffered, either mentally or physically, then, in that situation, the employee may have a claim against the employer under the category of Intentional Infliction of Mental Suffering and then seek damages for the employer’s conduct.

Workplace Harassment is another legal claim that may arise and that in Ontario at least comes under Occupational Health and Safety Act. And the Occupation Health and Safety Act requires that it’s an employer’s obligation to provide an employee with a harassment free work environment. It’s not only under the O.H.S.A. but we also believe that it’s a common law obligation on the employer to provide an employee with a harassment free workplace. And so it can be argued that the stress of the work, which is unreasonable. Which is unachievable, with respect to sales targets, or the kind of work that the employee has had no training or was not hired to do, create a situation, which is harassing for the employee, and then that may give rise to a workplace harassment claim.

Another claim that may arise is called Damages for Loss of Psychological Satisfaction Derived from Work. There has not been, in my experience, in my reading of the law, there has not been a case that has been argued on this point but authorities, the academics are at least discussed that this is a potential avenue which may be explored, and this may be the time where innovative lawyers may come up with these kind of claims and pursue and see whether the court will award any damages under this category.

So, what you want to take away from this lecture is that if these kind of scenarios are happening to a large number of employees, as we know, in with respect to the banks that there are hundreds, if not thousands of employees, who may be experiencing this then there’s a potential for a class action lawsuits and there are law firms that specialize in doing that. So, that may lead the way in these kinds of claims against employers.

You also want to keep in mind that in this in these kind of scenarios, that the law is still developing. With respect to Constructive Dismissal we have a lot of jurisprudence and so the, in that case the applications are not that complicated, but the other legal claims that I have discussed they are yet to be tested in many scenarios, especially with respect to the last part where I discussed the Damages for the Loss of Psychological Satisfaction. Now, this one has not been tested and also in the Workplace Harassment context this specific scenario has not been tested. We have ample case law with respect to Constructive Dismissal and Intentional Infliction of Mental Suffering.

So, what that means is you want to keep your eyes open and see if there’s more cases that are coming out. And finally, what you want to keep in mind is that although we took the example of a sale scenario in this case, the legal principle will apply to non-sale scenario. So, how do you want to see this lecture is that there is a situation where you, the employee, had specific training, expertise to do certain tasks, and the employer changes your duties without providing you with significant training or without providing you with proper targets that are achievable. In that situation, you may have a legal claim for the similar legal doctrines that we have talked about.

So, hopefully this is helpful to you in understanding what’s happening with respect to the recent scenario of bank employees, and it gives you some understanding of the larger context in which the duties are changed significantly.

Thanks for watching and if you have any questions or comments by all means contact us through one of these ways that we have listed and we look forward to seeing you in the next lecture.

Obtaining a Default Judgment in Ontario Superior Court Step 1 [video]

Tuesday, December 26th, 2017

This lecture provides a step by step guidance in obtaining a default judgment in Ontario Superior Court. The first step of noting the defendant in default is covered in this lecture. The second step of bringing the motion for default judgment is covered in the second lecture on this topic.

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

Show Notes:


Lecture Slides:

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 everyone this is Amer Mushtaq from You Counsel. Today, we’ll talk about obtaining a Default Judgment in the Superior Court of Justice in Ontario. This will be done in two steps … we’ll explain step one in this lecture and then we’ll cover the remaining in the next lecture. We’ll also explain to you what a Default Judgment is so you can understand the basic concept.

Before we began, we’ll explain to you our usual disclaimer that this course is not legal advice, if you have any specific questions you must contact a lawyer or paralegal or contact the Law Society of Upper Canada for any referral.

So, what is a Default Judgment? Essentially, you get a Default Judgment when you have filed and served the claim on the defendants and for some reason, there is no defense either nothing has been filed or the defense has been struck out, and you basically just go to the court at that stage and get a judgment against the defendant for your claims. So, you’re not going through the usual process of examinations for discovery and pretrial and trial, you are simply after you have filed and served your Statement of Claim, you are getting a judgment against the defendant, which you can go and enforce against that defendant. So, that’s what a Default Judgment is.

There are two steps to get a Default Judgment. Step number one is you have to Note to the defendant or defendants in default, and step number two you have to bring a motion to obtain the Default Judgment against the defendant or defendants. As I said, we’ll cover Noting in Default in this lecture and then we’ll talk about the motion for Default Judgment in the next lecture.

So, Noting in Default is obviously covered under the Rules of Civil Procedure. Any process that you undertake in the Superior Court of Justice Ontario is explained or at least covered in the Rules of Civil Procedures, and in this specific instance, Noting in Default is covered in Rule 19, and at some point, in this lecture I’ll briefly go over that rule with you, so, you can have an understanding of what that rule is about.

So, what are the circumstances in which you can Note a Defendant in Default? I will explain to you some of the circumstances. Number one, the defendant has not filed any Statement of Defense. Now, if you have issued a claim and served it you know that once you have served the defendant with your Statement of Claim, the defendant has a specific number of days in which the defendant must serve you with the Statement of Defense and then file it with the court. In certain instances or most instances, it is 20 days when you have served the defendant within Ontario, and it could be 40 days or 60 days depending upon where the defendant is located. If it’s elsewhere in Canada, I believe it’s 40 days and if it’s elsewhere in Canada or in the U.S. and then outside internationally, I believe it’s 60 days. But in any event, I covered that in my lecture regarding Statement of Claims, so you can review that. But there is a specific time line during which the defendant has serve and file the defense, and if no defense, you have not received any defense within 20 days or 30 days, as the time applies, then you have the right to Note the Defendant in Default. So, that’s one circumstance, and also note that in sometimes even though the defendant has not served the Statement of Defense, but they have contacted you and you and the defendant has have agreed on a different timeline for the defendant to serve the Statement of Defense and in that case, you should abide by that agreement so, that the defendant can file its Statement of Defense. But absent of an agreement and the defendant has missed the deadline, then you have a right to Note the Defendant in Default.

In other circumstances where for some reason the court has struck out this Statement of Defense in its entirety, and has not given any opportunity to the defendant to revise that Statement of Defense and serve and file it again. So, in my 10 years of practice, I’ve not come across an instance where I was personally involved in such a situation, where a Statement of Defense was completely struck out but the rules provide for it and there may be circumstances, but it’s a very, very, rare situation to occur so you may not be dealing with that kind of situation in your case.

Another opportunity to Note the Defendant in Default could arise where the court has struck out maybe part of the defense or struck out the defense, but given an opportunity to the defendant to revise and then serve and file a revised Statement of Defense within a certain time period. And that time period has also lapsed and the defendant has not served and file the revised Statement of Defense … then you still have an opportunity to Note the Defendant in Default.

Let’s look at look at the rules briefly. They will cover what I have briefly covered here, but I will look at them, so, we can get a complete understanding of these rules. So, as I said Rule 19 is the one that talks about Noting in Default, and talks about Default Proceedings and then there are certain sub rules that talk about Noting in Default. 19.01 Sub 1, as I said, where a defendant fails to deliver a Statement of Defense within the prescribed time. If you are the plaintiff, you may on filing Proof of Service of the Statement of Claim or deemed service require the registrar to Note the Defendant in Default. Now, with respect to the service of the Statement of Claim I have covered this partially in my lecture on Statement of Claim, but rules about the service or deemed service as specific rules and if you are not clear about those we will cover those in another lecture, and then you can review that lecture. But for the purposes of today, we’re assuming that you understand how a Statement of Claim is served and then you have properly served that Statement Claim on the defendant.

So, you have served it and the defendant has not filed a defense within the prescribed time, you can go to the registrar and have the defendant Noted in Default. The other scenario that I mentioned to you where the defense has been struck out, without leave to deliver another, so no opportunity to file another Statement of Defense or where there was an opportunity to deliver another, but they have failed to deliver within the time allowed, you can still go and have them Noted in Default.

If you are a co-defendant, you’re not a plaintiff, but a co-defendant and you wish to Note another defendant in Default because they have not served their defense with a timeline, then you can do so under this sub rule 3.

If a defendant is under a disability, then you cannot just simply go to the registrar and have that defendant Noted in Default, you must go to the judge and get leave from a judge on a motion and then have that defendant Noted in Default, so, you cannot do it without going through a judge.

Why is this Noting of Default important? I think it’s important for you to understand and this sub rule 5 is the one that explains that if you have not noted a defendant in default and the time for the service and filing of the Statement of Defense has lapsed, the defendant can still go and serve you with a Statement of Defense and file it with a court, just because you have not noted the defendant in default. So, to give you an example, if the defendant was required to serve and file the Statement of Defense within 30 days and it’s now 40 days but you have not received a Statement of Defense and have not Noted the Defendant in Default … the defendant can still serve you with a Statement of Defense and then file it with the court and it’s okay. So, if you want to make sure that the defendant abides by the timelines within these rules, then you need to take steps to secure your own rights under the rules. And in this scenario, what that means is that if the defendant has not served the defense within the time line, there is no agreement to the contrary, then you proceed and actually have the defendant Noted in Default and that will take away the defendant’s right to file the defense even after the time has passed.

What are some of the some of the other consequences of Noting the Defendant in Default? This is covered in Rule 19.02 and I’ll not go through the entire will but I’ll basically explain to you that when a defendant is Noted in Default, that defendant loses all rights to participate in the in the court proceeding. So, that defendant is not entitled to any notice, that defendant is not entitled to any steps in the court process, because the defendant has chosen not to participate in the court process by filing a defense, so, that defendant has lost all rights. So, you can proceed unilaterally, seek a default judgment, and go and enforce your judgment, take any other steps under the rules that are allowed to you, but you don’t need to tell that defendant what you’re doing whatsoever. So, the consequences of Noting in Default are important and significant and so, you want to make sure that if you are intending to proceed with a Default Judgment and enforcement of that judgment against that defendant you must follow step number one which is the Noting in Default.

Okay, so what are the steps in Noting in Default? There are three steps, step number one, you have to prepare an Affidavit of Service of the Statement of Claim. Step number two, you will have to prepare a requisition for the registrar to Note the Defendant in Default, and then you take your requisition, two copies of your requisition, and an original copy of your Affidavit of Service and you go to the court, go to the registrar and file the two documents.

Let me give you a quick example of these two documents, so you can and, these are pretty set forward, but I’ll give an example so you can understand how these documents are prepared. Let’s look at the Affidavit of Service first. So, the Affidavit of Service and the requisition, they are both available online. The forms are available; I’ve actually pulled it up here. If you go on Google and type in, “ Rules of Civil Procedure Ontario forms” you will get this page, and form 40 is the Affidavit. You can have it in P.D.F. or Word document, if you click it you will get it. And similarly, 4E is a requisition again in P.D.F. and Word document.

So, I have prepared these as an example for you. So, let’s look at Affidavit of Service, pretty straightforward document, but you want to start by putting that title of your proceeding, which means that court file number that comes here is exactly what is written on your Statement of Claim, so, you copy that here and then the names of the plaintiff, you are the plaintiff you put your name here. Put the name of the defendant and again this information must be exactly identical. It must be identical to what’s on the Statement of Claim. So, you put that information, and then whose Affidavit of Service is this? In this case it was mine, so, my name comes here. If you serve the Affidavit of Service, if you serve the Statement of Claim personally, then your name comes here, if you’re a processor or somebody else serve the affidavit then that person’s name comes here, and then the date on which this affidavit was sworn, not the date of service, but the date on which the affidavit sworn, you put that information here. So, I, Amer Mushtaq obviously the deponent and affiant’s name comes here of the city in which the person resides, of the province in Ontario make oath and say, “on such and such date, this is the date of the service”. So, if you served the defendant on May 20 of 2017, he put it here on May 20, 2017, I served the defendant, put the defendant’s name here. With what document, the Statement of Claim. By what means? In this situation, we served the defendant by leaving a physical copy where the person, the receptionist at so and so at this defendants address, right?

So, there are other ways to serve the documents and whatever acceptable means of service you followed, you basically provide that. When did you serve the document and how did you serve it and whom did you serve it on and where did you search at? So, you put that information here, and then when you say that I’ve served it on such and such person how did you know that person was that person? So, if the person acknowledged this verbally, then you write down that the person verbally acknowledged that he or she was such and such person. Or if you look at their driver’s license and you can say I looked at their driver’s license to confirm that this was the name of the person, and because we were serving this claim on a corporation you want to serve it on somebody who seems to be in charge of that corporation at that time. And by, in charges it doesn’t mean C.E.O., but and in control of that space. So, usually a receptionist, or an office administrator of some kind is fine. So, we mentioned that we serve this person, we identify this person with a name, and then that person seems to be in the control of that office.

So, you provide the statement and like I said, depending upon how you have served that statement, the nature of the statement will vary but you want to make sure that you provide the full information. Then you sign here before a commissioner of taking affidavit or notary public or a lawyer. Put the city, the name, and the date of the swearing off this affidavit, and on the back page, you have similar information plaintiff’s name, defendant’s name, court file number, your name, date of service, and then this is your information, not my friend’s information. So, you just put in your information, I have just left it here, so, you can understand as a sample how this is done. So, once the once you have sworn the affidavit, you have signed and the commissioner has signed it, you take the original copy and you file it with a court, not a photocopy, so, make sure that you have multiple original copies in your possession so, you can use them as needed.

So, that’s your Affidavit of Service let’s look at the requisition, which was I believe form 4E and it is again straightforward. The top portion is, again, identical to what’s on the Statement of Claim, which is the court number, plaintiff’s name, defendant’s name and then you are addressing the requisition to the local registrar. If it’s in Toronto you put the Toronto name, if it’s Newmarket or any other jurisdiction then you put that jurisdictions name. And what is it that you want the registrar to do? I require you to Note the Defendant, the defendant’s name in Default, that’s all you have to say. Put the date here, put your name, address, phone number, sign it, take two copies with you, so you have two copies of this requisition, you have an original copy of the Affidavit of Service, you go to the registrar hand these over. If the registrar accepts the requisition then the registrar will put a stamp here, a court stamp here, and date here and then give you back a copy that means that the defendant is indeed Noted in Default. So, straightforward steps but you must follow these steps accurately, perfectly, so, that you have no issues in Noting the Defendant in Default.

In the next lecture, we’ll talk about how do you go about bringing a motion for Default Judgment and we’ll explain those step so, you can have your Default Judgment against the defendant.

Thank you for watching! If you have any questions or comments please feel free to contact us and we look forward to hearing from you, thank you.

Employment Insurance Benefits and Severance Overlap [video]

Tuesday, December 26th, 2017

Can you receive both severance payment and employment insurance benefits after being dismissed from employment on a without cause basis? This lecture explains to the legal framework to answer this question in simple terms.

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

Show Notes:


Lecture Slides:


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 everyone this is Amer Mushtaq, from You Counsel. A lot of times when employees are terminated without cause in Ontario, they are unclear about their terminations rights and the interplay of those terminations rights. So, specifically, people have questions about whether they will get Employment Insurance Benefits if they get the severance pay or whether if they’re getting Employment Insurance Benefits would they still be entitled a severance pay? So, that’s a fundamental issue and we’ll explain that legislative framework in this lecture and hopefully, that will help clarify this issue.

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 paralegal or the Law Society of Upper Canada for a referral.

Now, Rights and Terminations Without Cause, and this is a situation in which the employee is not terminated for cause, and if you’re unclear of the difference between with cause and without cause termination we have separate lectures on that. But, briefly speaking, this is a scenario in which the employee is not being terminated because of some serious misconduct.

The first kind of benefit that the employee may be entitled to is Employment Insurance Benefit under Employment Insurance Act. There are specific requirements for the employee to be eligible, and these generally include that the employee has worked certain number of hours, has completed a certain number of work hours, and the employee is dismissed without cause and then he or she may be entitled to Employment Insurance Benefits. The employee may also be entitled to termination pay under Employment Standards Act, which is based upon, again, the number of years and months the employee may have worked for that employer. The employee, in addition to termination pay, may be entitled to severance pay, which is a separate category. It’s not the same as termination pay under the Unemployment Standards Act, and it has it’s own qualifications for the employee to get severance pay.

And then finally the employee may be entitled to Reasonable Notice under common law which is the judge made law based upon the previous cases that the courts have decided. And so, the employee may be entitled to that, and all of these entitlements depend upon the employee’s length of service and the fact that employee was dismissed without cause and what kind of employment contract the employee has or had with the employer.

Before we get into our basic question, I just wanted to explain the Reasonable Notice Concept one more time. We have covered this in our other lectures, but fundamentally, a Reasonable Notice is the concept that comes from the courts, it is not based on a legislation, and if an employee is entitled to Reasonable Notice then that Reasonable Notice already includes the terminations pay and severance pay. So, you don’t get Reasonable Notice plus termination pay plus severance pay, that is not how the Reasonable Notice is calculated. If you are entitled to any termination pay or severance pay then both of those kinds of payments are already included in a Reasonable Notice, so, you got termination pay, you got severance pay and then potentially, you have some additional notice.

So, one example could be that let’s say employee was entitled to six weeks of termination pay and six weeks of severance pay, and then the judge may very well, under the specific circumstances, give six months of additional notice and so this could the total could be seven months or so. So, this Reasonable Notice includes all of that and why it’s important for you to keep in mind is that the discussion we’re having in the next slide, if we’re talking about Reasonable Notice then that’s probably the best case scenario for the employee, so, if we use Reasonable Notice then it’s easy to understand the examples better.

Okay, so the question then arises that if an employee is terminated can the employee be entitled to all of those benefits that we have described above? And the answer is potentially yes. So, there could be a situation where the employee gets Reasonable Notice, plus the E.I. Benefits. There could be a situation where the employee gets termination and or severance pay plus E.I. Benefits, and these scenarios are possible, but you must keep in mind that these payments are not for the same time period. So, the E.I. and Reasonable Notice or E.I. and termination and severance pay cannot overlap for the same time period.

Let’s explain that by way, of an example and hopefully that will help us clarify this question. In a normal Termination Without Cause, these are the sequence of events that take place. The employee is terminated, and the employee gets termination or severance pay or Reasonable Notice from the employer, and when that terminations or severance pay is exhausted, E.I. kicks in, and then E.I. runs for the time period until the employee is unemployed or about 10 months or so that is the maximum that E.I. is provided.

So, let’s say in the situation, the employee is terminated January 17, and the employer provides five months of Reasonable Notice. Then the Reasonable Notice kicks in, and it runs up to May 2017, that’s the Reasonable Notice period and then from May until I believe March 2018, the employee gets the E.I. Benefits. So, from January from the time that the employee is terminated, to March of 2018, the employee gets Reasonable Notice and E.I. Benefits as long as the employee is unemployed. So, that’s a scenario in a normal or in an ideal world, that’s how things should happen. But, in the majority of the cases this middle part is the one that creates most anomalies, and what happens is in majority of the terminations, employees either don’t get any of the of these rights termination, severance, or Reasonable Notice, or get inappropriate rights. So, they’re not the correct payments that they should receive and there are different reasons for that. But majority of Employment Law litigation is based on this, so, for instance, 80% of my practice is really trying to get employees there appropriate Reasonable Notice or termination and severance Pay in their circumstances. And so, most of the Employment Law litigation is either lawyers advancing employee’s claims, for Reasonable Notice or lawyers defending the corporate clients actions.

So, because of this anomaly in the real world, the majority of the people are in this scenario. Where they get terminated and then they start receiving E.I. Benefits and at some point in the future, either when they are already receiving E.I. Benefits or E.I. Benefits have expired and that at some point they get through settlement or a judgment termination, severance pay, or Reasonable Notice. So, in this scenario then, the employee is terminated January 17th and that employee starts receiving E.I. right after that and then comes the Reasonable Notice.

So, the problem with this situation is that just because this is how the sequence of events happened, this is not how the law allows these things to be tagged along. Meaning that the law does not permit that you exhaust your E.I. Benefits and then you tag along your Reasonable Notice after your E.I. Benefits, that’s not how the law works. So, even though the person received these terminations and severance or Reasonable Notice after the person already started receiving E.I., what the law requires is that take this payment and then insert this payment over here, right? So, the law wants you to make the scenario the same as its previous slide where the termination, severance, or Reasonable Notice kicks in before the E.I. Benefits.

So, we move this Reasonable Notice before E.I. but then what do we do with the E.I. Benefits that you have already received for the same time period? And, so, in this scenario then the E.I. will send what’s called a Notice of Debt to the employee and say that you now have received five months – let’s take the same example – five months of Reasonable Notice from January to May, but we also paid you from January to May, E.I.. benefits so, can you kindly return the money from January to May that we have paid you? Why, because you have received E.I. Benefits for the same time period. Okay, so, you return that money and then The E.I. clock is, in a way, reset for May 2017 right. So, come May 2017, if the employee is still unemployed then the E.I. kicks in again, and then it will run for another 10 months or so as long as the employee is unemployed.

And why that’s important, is it because it all comes down to when the employee obtains employment. Because the two concepts that you want to understand in this scenario is that ‘A’ there is no overlapping double payment right, there is potential for double payment but it can’t overlap. And then you can’t get E.I. if you are employed. So, in this scenario, the advantage of moving E.I. again, ahead of the Reasonable Notice period, is that the clock for the employee is reset and if the employee does have a job in May 2017, then the employee does not get any more E.I. benefits … so then the Reasonable Notice that the employee had received makes the employee whole up to May 2017 and there on … the employee has a job, so, that’s the end of it. But if the employee still does not have a job then he or she is entitled to E.I. Benefits and that can run for the Reasonable Notice period.

So, the key things that you want to remember is that there is a potential for getting all of these payments, you can get all of these payments, but you must keep in mind, that they do not overlap for the time period. And what you also want to understand is that this concept comes from two legislations, one is the Employment Insurance Act And second is the Employment Standards Act and then of course, the common law, the judges law.

So, hopefully that helps you understand under what circumstances you can get E.I. Benefits and severance payment and under what circumstances you don’t. But, if you are unclear about any of these concepts or if you have any questions or any feedback we’ll appreciate to hear from you, and thank you for watching.