Show Notes:

N/A

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 negotiating employment contracts. Back in our parents’ time, you may recall that you would get hired with one company, and you will work for that company for the rest of your life, and you will retire from there. Those days have long gone, there was a study that I came across a few years ago, that suggested that an average Canadian will go through about 7 to 9 different jobs in their life time, and that was a few years ago, and that has changed significantly even in the last, you know, few years. Because of the advancement in technology, and the concept of full time employment for the entire life is no longer valid. So, therefore this topic is crucial, it’s fundamental for many, many employees to understand how to negotiate that employment contract.

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

So we’ll start with point number 1, should you negotiate employment contracts or not? And I’ve given you one reason at the outset that you will be going through several employments in your lifetime, so obviously there is a reason that you should negotiate. But there is another basic fact that you must understand, and that’s the basic purpose of an employment contract. The basic purpose of employment contract is to protect employer’s interest. That is the core reason why an employer gives thousands of dollars to a lawyer to have that contract drafted. The employee’s interest that a lot laid out in an employment contract are really subsidiary to that, but the fundamental reason why an employment contract is drafted and is put in writing, and it has so many clauses in it is really to protect employers business and employers own interest. So, this is the most important reason why you should worry about what goes in that employment contract.

Now the second question arises, can you negotiate an employment contract? Can you? When you are at the receiving end, you are just a small employee, you are being hired by a multinational company, a large bank, and oftentimes, when they provide you with a job offer, and if you ask any questions or raise any concerns the answer will be, this is our standard employment offer and take it or leave it kind-of-impression that you get. But you can absolutely negotiate employment contracts, and this is something that we’re going to talk about today.

There is a smart way to do that, there is a smart way to negotiate employment contracts, and so in our future lectures we will talk about how do you negotiate. Negotiation is a skill, it is an art of its own and so there’s a smart way to do it or you can be very direct about it and tell the employer that these terms are not agreeable to you and you want different terms. But I’ll give you without getting into detail, give you 2 scenarios in which you can negotiate and what are the ways to do that.

So number 1 is when you have no employment contract. So, you’re unemployed this is the first job you’re getting and you’re excited about it and this is your first contract, he even in those cases you are able to go back to the employer and ask for certain changes in the employment contract terms whether it’s salary, whether it’s bonus, whether it’s sign up bonus, whether it’s more vacation, anything that you may want to negotiate, generally you’re able to negotiate that. But, if it’s your first contract, and you’re sheepish about going back to the employer and asking for something else, then by all means accept the employment contract, sign on the dotted line and then that puts you in a situation where you now have an employment, you are employed. So, now you are in a position literally for the second contract to negotiate the terms that you want because you already have employment, you’re working for a company, you’re getting paid, so there’s no sort of fire that is causing you to sort of run out and look for a job. You actually go for a job that is appropriate for you, that you believe provides the benefits and remuneration that you deserve. And It’s a second contract that makes employers negotiate even in the first contract. Because employers understand that if they do not enter into a reasonable equitable relationship with that employee the employee will leave, and so therefore for both of these reasons, I believe that you absolutely can negotiate employment contracts, and you must.

And I’ll give you an example from my own practice, I mean in the last 10 years or so, I have advised many, many clients on negotiating their contracts, most of them have been able to get something added to their contract because of the negotiation, and sometimes they couldn’t and they accepted whatever the offer was made to them and moved on and looked for another job that will provide something better. And in 10 years, there was only 1 case where this was my long standing employee, and her and I had negotiated several contracts, and she got a job offer from a multinational company making inroads in Canada, for a very senior sales position. And I suggested that there should be certain changes and she, very, very politely, put out an email saying that she reviewed the employment contract with a lawyer, and there are a few things that she wanted to discuss, and the employer simply withdrew the offer which was quite shocking to us. I’ve never experienced that she had never experience in our lifetime. But that was the only example where the employer simply withdrew the offer and we don’t know why, it could have been because she wanted to discuss, or could be for some other reason. But 2 years down the line, she called me and she said she was so happy that she had not accepted that offer because that employer was now unwinding all of its operations in Canada and every single employee across Canada was losing his or her job.

So going back to yes, you can negotiate, and you must negotiate, and you should not really worry about the consequences, because if your employer really wants you for that position, then they will come to terms which are just and fair for you in that employment relationship, but you’ll have to ask for it.

Now, what’s the single most important thing that you want to negotiate? And so there’s one thing that you must negotiate in an employment contract, what is it? Is it your salary? And the common answer will be yes, I want to make sure that I get properly paid and my salary is what markets suggest or what I salary is what I am hoping for. My answer is no, the single most important thing you want to negotiate in your employment contract, is your termination clause. Yes, what happens to you when you lose that job, when you are terminated, that’s the single most important thing you want to negotiate?

So, what is the best termination clause? I’ll briefly talk about it, we will have a separate lecture on termination clauses. But what I can tell you from the outset in this lecture, is that the best termination clause is no terminations clause whatsoever. So, if you have an employment contract that does not talk about termination whatsoever, awesome, that’s amazing. You don’t want to go back and say hey there’s no termination clause, I want you to put one! No, no, no! If you’re an employee and there’s no terminations clause in the job offer, that’s amazing, why? Because you get Common Law Rights on terminations, you get Reasonable Notice of Termination, and what is that? We have a lecture on that, and kindly of check it out, and it will explain to you what Common Law Reasonable Notice is. But in essence, what it means is your termination rights are highest when you have no terminations clause in the majority of cases.

What is the second important thing or point number 4? Is now should you know negotiate salary? Because that would sound right, because you’ve got a termination clause locked in and now you want to worry about your salary and my answer is, no. The second most important thing, is the Post Termination Clause. What is a Post Termination Clause? Post Termination Clause is a clause obviously of what happens to you after you’re terminated. So, this clause indicates things that you cannot do, even after your employment has ended. So, that’s important. So, in employment contracts, some of the examples are Non-Competition Clause, Non Solicitation Clause, and all of these are called restrictive covenants, and there could be a variety of those clauses. So, the lesson you want to keep, is that in an employment contract, there are things that you can and cannot do during the length of your employment, but you can have an employment contract that has clauses about things that you cannot do even after your employment has ended. So, you’re not getting paid, you’re not getting salary from that employer any more, yet you are not allowed to do certain things. So, very, very important for you to understand that, and we’ll have separate lectures on all of these clauses.

Now come to Remuneration, and their idea of things that you want to make sure you negotiate. Obviously salary, bonus structure, commissions – if you’re entitled to it – benefits and all of that.

So in summary, the lesson that you want to keep that it is essential, is that you want to negotiate your employment contract. Why? Because we said that you may end up having 7 or more jobs in your lifetime, and you want to make sure that what you understand and negotiate what happens during those employments, and what you are allowed or not allowed to do after those employments.

But another thing that you want to understand, is what’s happening in this day and age, is full time employment is really going out of the door and what’s happening is, employers are hiring employees for individual tasks. So, employment is getting out of the door, tasks are coming in, which is the concept of having independent contractors. So, if you are going to be hired by an employer to do certain tasks, and you may end up having to work for multiple employers at the same time, you absolutely want to make sure that you understand what is the employment contract or the independent contractor agreement that you’re signing with that employer, and you want to make sure that you negotiate those items in your benefit. So, hopefully this was helpful, this is a very, very broad topic, very detailed, very complex topic. We’ll have many more lectures on this, but hopefully this gives you a basic sense of why you should negotiate employment contracts and what are some of the basic terms.

Ask us questions, contact us by e-mail, by comments on the YouTube channel, and we’ll be happy to add more information in the future lectures. Thanks for watching.

Show Notes:

N/A

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 terminations rights for boomers and 3 things that you must know if you are a baby boomer. I was specifically asked to cover this topic by some of my clients, who fall into this category, and they thought it would help other baby boomers in the future. But the principles that I talk about in this lecture equally apply to people of different ages as well, so you can benefit from this regardless of whether you’re a baby boomer or not.

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

So, most of the termination letters that you will find these days, they will indicate that to an employee that Joe or Mary, your employment is being terminated without cause due to business restructuring or corporate restructuring. That’s a very common reason for dismissal these days, and so what on earth is this restructuring? Restructuring is a very simple concept in business, and essentially what it means, is to make certain changes to the business so that the business becomes more sustainable and more profitable, that’s essentially what a restructuring means. And so restructuring could be done in a variety of ways, for example, you can come up with new ideas, new innovations, you can change your business model, and you can create processes which are more efficient, so on and so forth. But one of the elements of restructuring is relating to employment law and that is what I’m going to talk about today. You will notice that the easiest way to restructure a business and make it a bit more profitable or sustainable or make it look profitable, is to reduce the business expenses, and when you’re looking at business expenses, if you are dependent on a large number of employees, then employees become an easy target for a restructuring. If you reduce the workforce, or you make the workforce cheaper, then you will be easily able to show that the business is doing well, so that is sort of the one of the easiest ways of restructuring, and actually the most common one.

There are 3 ways that restructuring is commonly done in Canada, and one example is outsourcing work or off shoring work, which is the most common one, and I’m sure everyone of you is familiar with that. The idea is that if you’re paying $80,000 to someone in Canada to do a job and if you can hire someone across the world somewhere else, and pay that person $10,000 for the same job, then the math is straightforward and the answer is simple, eliminate that job and pass it on to the person who lives elsewhere. So, that’s outsourcing, offshoring and it’s been going on for a while. The other option, is that you replace that worker with another or reduce the work force or a combination of both. And this is essentially replacing that worker with another human worker, and the example of that could be, that again the employee who’s been there for 20 years makes $80,000, and then why not find somebody who you can hire for $40,000, half the salary, half the age, 25 years old, and maybe able to work twice as much, 20 hours a day, 18 hours a day. So, that’s sort of one-way of changing the workforce, and then reducing it. Obviously, because if you’re making the new employee work for 2 employees previously, then you’re already reducing the work. And then the third way, is that why be dependent on human being at all, and just replace the human with a machine, whether it’s an artificial intelligence, whether it’s a robot or whatever machine or software that you want to use to replace or reduce that human element and you could do that. So, as you can see all 3 of these factors, all 3 ways of restructuring affect all of us, regardless of our age, regardless of our position, regardless of our expertise. But item number 2 that I’m talking about, replacing reducing with another has a significant impact on the aging population and baby boomers, and this may impact them more than any other category of people. And so I want to talk about that a bit more today and explain that. And I can tell you that outsourcing, offshoring, has been around for a long time and there has been a lot of criticism on it, and there is a general trend overallm at least in the western world, to sort of reduce the outsourcing offshoring, if you’re familiar with the political environment these days. So, what I believe is an employment lawyer is that the number 2 is going to continue to be on the rise, because it’s easier to justify, to say that I’m a Canadian company or we’re a Canadian company and 1000% of our workforce is Canadian and nothing is offshore, but then, what you have done is you have replaced or reduced the workforce by someone half the age, half the income, and twice the hours. So, that’s sort of what I believe is on the rise and is happening more frequently than people understand. So, if you’re a baby boomer, you’re falling into this category, and I can tell you the way I see the Employment Law world, I’ve been practicing for 10 years and I’m constantly seeing this kind of restructuring. I can tell you with certain assurance, that if you are a baby boomer, your employment is absolutely on the chopping block in the near future, because of this approach towards restructuring.

So, that the issue is then simple for an employer, it get rid of that employee hire somebody half the age, half the value in terms of money and then make the person work twice as hard, but there’s a problem. And the problem for the employer, is that in Canadian law employees have rights on terminations, and one of the significant right on terminations, is getting reasonable notice or termination rights, and I’ve spoken about this in a separate lecture and quite detail. If you’re unclear about this concept, then by all means check those lectures.

So, what does that mean? I’ll give you example, in terms of monetary values, if you have an employee baby boomer who’s been working for 20 years, 50 years old, makes $80,000, then if you have to let go of that person on the basis of providing a reasonable notice, then potentially you may have to spend $160,000 plus to get rid of that employees, so that’s a large amount of money, and if you have to let go of a number of people, then that cost could be millions of dollars. So, an employer who’s trying to save costs, who is trying to save money, would really not like to spend that much money in letting go an employee. So what do you do as an employer to save that kind of money? And you know all kinds of solutions are devised to sort of go around that problem, and I’m going to go through the most common 3 solutions.

Number 1 is revised contracts. So, what I mean by that and I’ve seen this happening, it’s not something that happens elsewhere in the world and not in Canada. And in this situation, when the employer realizes that they want to let go, a person and his or her entitlement, is significant and hundreds of thousands of dollars, sometimes what they will do is, they will try to revise a contract either by increasing that employee’s salary abate or changing the employment duties abate, somehow making certain changes, and in that new contract, the employer will sneak in a terminations clause, which will limit the employee’s terminations right significantly. So, I can give you an example in Ontario, if that new contract puts in a termination clause that says, if we terminate your employment, your entitlement on termination is limited to what’s stated in Employment Standards Act 2000, then that means that this employee who was there for 20 years, making $80,000, who could have been entitled to $160,000 based on now the application of the Employment Standards Act, may only get 2 months of pay, two weeks of pay, it’s like a significant reduction in the termination rights. So, that’s sort of one way that the employer may go around this problem of providing reasonable notice and revise the contract. So, if you are faced with that kind of situation you have to be alert.

The other approach is again pretty simple, why don’t we make the employee leave? Because if the employee leaves, the employee resigns, then he or she is not entitled to any reasonable notice, it’s resignation, so there’s no severance payment that is triggered by resignation. And so, some of the ways, the employer will do it, and I can tell you, I have corporate clients and they don’t do these kind of things, and I would never you know advise them to do these things, but it is not to say that this doesn’t happen. This happens enough that I am putting this in a lecture and I’m saying that you have to be watchful of these things. So make the employee leave, so create an environment, a poisonous environment for the employee, start criticizing him, start harassing him on benign things, making just his day miserable or her day miserable on an ongoing basis to the point that the employee just can’t stand it, and decides to leave the workforce or resigns, and then you don’t have to pay any reasonable notice or any severance or termination pay.

And then the third approach is, if the employee is still not leaving, then you start attacking the employee’s performance. So, what that means is start documenting, start issuing warning notices to employee, saying that he or she is not performing up to the required standards, maybe put the employee on performance improvement plan things like that. So, the employer does starting to build a record, so that it can use that record to maybe justify a dismissal for cause and in a dismissal for cause, the employee is not entitled to any terminations or severance pay. So these are some of the 3 solutions that the employer may try to impose to reduce its obligations on termination from $160,000 in that example to literally bringing it down to 10 to $15,000 or 0. So is that legal? Of course not. If an employer is doing any of these things, there is a legal issue, obviously in Canada, because we have certain laws that protect the employees.

So 2 legal issues arise from this kind of behavior, one is obviously discrimination and in Ontario, we have the Human Rights Code, which prevents discrimination on the basis on a number of grounds, age being one of them. So if you are in a situation, or if you notice that an employee is being discriminated because of his or her age, and these are the actions that the employer is instituting to either terminate the employee or to put him or her in a position that the employee leaves, then it could be an issue of discrimination. And the second issue is the larger issue of Bad Faith Conduct. Obviously, if an employer is putting these kind of plans into action this is a bad faith behavior to curtail your lawful obligations towards that employee. So, obviously, this kind of conduct can give rise to legal issues, if you are alert to it and if you are keeping track of what’s going on with you, so that’s why this lecture is important, and you need to protect yourself so that’s the key thing that if you’re in a workforce, if you’re in a workplace where you expect that any of these things may happen or you start noticing changes that are unusual, then you want to protect yourself.

So I can give you 3 suggestions to keep in mind, number 1 is document document, document. I cannot emphasize enough that if you started noticing changes in your workplace that are not positive, either it’s unnecessary criticism of your work performance or anything else that you think is unusual, you start documenting. And the way you document, it is not documented on your work computer, but you document it at home and on your personal computer, and you keep evidence. If there are documents, memos, or e-mails that prove your case, then you want to keep records of that because you would need those if you are terminated. The second part of that I want to emphasize, is that if your performance is being criticized improperly and unfairly, you want to dissent, you must raise the issue in writing, I would prefer in writing, but if not in writing, orally or in meetings, that you do not agree to the performance issues that are being raised. Because if you don’t dissent, if you don’t raise the issue, then by conduct by not raising it may be consider that you agreed to those criticisms, so you must dissent if there is a performance issue being raised against you. And then the third thing, the larger part of that you want to keep an eye on, is what’s happening to other employees? And you would realize, let’s say, if you notice that there was a wave of terminations that took place and you see a theme there, you see a common element that majority of the older employees have been picked for termination, then you can gather that information, you can write down their names so that you can use that as evidence to indicate that there may have been an age discrimination going on in the workplace. So you want to keep your eyes open and see what’s happening to other employees in your workplace, so that you can gather that information and use it if you need to.

So, these are at least 3 things that you can do to ensure that you can protect your rights on termination, and if you look, if you’re faced with an employment contract or a new employment contract, you must not agree to it unless you review it with an employment lawyer to make sure that you’re not giving away your significant rights on termination. So hopefully, this was helpful for the for the boomers and for other people whose workplaces maybe going through employment restructuring, and you want to guard yourself and protect your rights on termination. If you want us to address a specific topic, please send us an email or put comments on YouTube, and we’ll be happy to add those in the next lecture. Thank you for watching.

Show Notes:

N/A

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. We will talk about Motions in Ontario Civil Courts today, and we will provide some basic concepts about what is a motion, when do you bring it, and what’s its purpose and role. The main principles that we’ll cover today apply to any kind of motion that you may bring whether in a civil court, whether in federal court, or in any other court in Ontario or across Canada, but in the end, we will cover some specific rules that apply to motions in Ontario. So, the concepts are pretty broad for anyone to understand what a motion is.

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

Our discussions today will include what is a motion? What are some of the common types of motion? Who do you bring the motion before? What our party’s position is different kind of positions parties take with respect to a motion? And we’ll talk about methods of hearing a motion, and documents that you may need to produce or provide or submit to others parties in a motion. And then briefly what kind of rules relate to a motion.

So first, we want you to understand what is a motion? A motion is really a party going to the court and asking for a direction, a ruling, or a specific order on a specific issue before trial. So, it’s kind of mini hearing before the trial on some specific issues. So, the definition is very broad and I want you to understand clearly the broadness of this definition of motion. Because motion is a great tool that allows you to get so many orders or directions from the court, that are not ordinarily covered in the process from filing a claim to a trial. And so I think one way to explain what a motion is, is by giving you some examples of the kinds of motions parties bring, and that will give you an understanding of what a motion really is.

So one example is Noting in Default, Production of Documents, setting down timetable, summary judgments, setting aside varying or amending court orders.

So, Noting in Default is an important motion and so, in this situation for instance, you are the plaintiff, you commenced the court action and the defendant failed or refused to file their Statement of Defense or failed or refused to respond to the Statement of Claim, and you now have the option to note the defendant in default. So, this is an important motion, in the sense that you bring the motion, you have the defendant noted in default, that will allow you to proceed and get a default judgment against the defendant. Or whatever next steps that you may take. Now the defendant doesn’t need to know what steps you are taking, because the defendant has been noted in default, the defendant has refused to attend or participate in the court process, that’s one kind of motion.

Another motion is Production of Documents. In Production of Documents for instance, at some point you realize that the opposing side has certain documents in its possession that are relevant to the issues in your case, but for whatever reason they have failed or refused to produce those documents. You can bring a motion in court and ask the court to issue an order to compel that party to produce those documents. Production of Documents motion can also apply to third parties, where parties that have certain documents that are relevant to your case, those parties are not parties to the claim or the defense. They’re not defendants, they’re not third party defendants in the case, but they are parties outside of the court process, yet, you can obtain a court order through a motion and compel those parties to produce those documents.

Setting down timetable is an example when your court action is not proceeding in a timely manner under the Rules of Civil Procedure. The defendant is engaging in certain delaying tactics and you want to compel the defendant to follow certain timetables, so your matter, your action can proceed efficiently towards trial. You can actually bring a motion in the court, and then have a timetable set down, and ask the court to issue that order, which will compel the defendant or other parties to follow that timetable.

Another example is a Motion for Summary Judgment. A Summary Judgment Motion is quite an important motion; it can resolve at times the entire issue, the entire case, without even going to trial. So, there are limited ways in which you can bring a summary judgment motion, but it’s an effective tool and you do it through a motion.

Finally, setting aside, varying or amending a court order. Let’s say there was an order issued by a court with respect to certain matters in your court action. And you disagree with that court order or you need to amend it or vary it in anyway or set aside it, you’ll have to bring a motion to have that particular order set aside or amended.

So these are some of the common types, there are many, many more kinds of motions. The idea that you want to keep in mind, is that anything that is not covered in the normal course of your action, and you need to get a specific order from a court, you will have to bring a motion, get that order and only then, you will be able to get those things done. So, you are asking the court to give you direction on a specific issue, whether to make a party do something or stop a party from doing something, and then you bring that motion by way of a motion.

Who do you bring the motion before in Ontario in civil court, you generally have 3 options. You can bring a motion before a registrar, you can bring a motion before a master, or you can bring a motion before a judge. A judge has the overall power to answer to any kind of motion, but masters and registrars have specific jurisdictions. There are specific issues that a registrar or a master can deal with, and there are specific rules and the Rules of Civil Procedure that provide that jurisdiction to a registrar a master. So, you must know before commencing your motion whom should you bring the motion before, should it be before a judge, a master, or a registrar.

And keep in mind, that a motion that ought to be brought before a master should not be brought before a judge; and similarly a motion that ought to be brought before a registrar should not be brought before a master or a judge. And we have a separate lecture already available on this in terms of the difference between the powers of a master and a judge, by all means check that out.

Now Party’s Position. What I want you to understand, is that there are fundamentally 2 ways a motion can be brought. Number 1 is Ex-Parte motion, meaning that you are the only party who is bringing that motion, attending that motion and the circumstances are, such that you don’t need to serve the motion material the notice of motion on any other party, so it’s Ex Parte. And there are specific circumstances in which you can bring an Ex Parte motion and you must meet those circumstances.

A majority of the motions are brought on notice, meaning that all parties to that action know they have been served with a notice of motion the specific document that you will be bringing this motion on such and such date. And so, when a motion is brought on notice, there are usually 3 kinds of party’s positions on it.

Number 1 is On Consent, so you have brought a motion on notice where all parties are consenting, are agreeing to what you are asking the court to do, and that and that’s not uncommon. You may need a specific direction from the court to do certain things or a make a party do certain things, but that party requires a court order. And they are agreeing to the fact that you can ask the order on consent, and so you can have a motion on consent.

Another position the parties can take, is unopposed. Unopposed is slightly different than On Consent obviously. On Consent, the parties agreeing to what you’re asking, and in unopposed position, the party is basically saying we’re not taking a position, we’re not opposing this motion, but we’re not saying that you should provide it, so let the judge, let the court decide how they want to give an order on that specific motion.

And finally, there could be motions contested. So, you are asking a certain order from a court, but the other party or parties are opposing it, and so you have a contested motion, which in most circumstances is the case.

Okay, how are motions heard? There are basically 2 ways, a motion could be in writing, and in motion, could be heard orally. There are a number of straightforward motions that are done in writing, even the contested motions in some circumstances can be done in writing, and then majority of the contested motions, opposed motions, are done orally before a master or a judge.

There are some specific documents that you would need, and these documents are referred to in the rules, the most important one is notice of motion. You prepare this document, you serve it on the other parties, and you file it with the court, and then whatever supporting evidence law, legal, or factual that you need to rely on to get the order that you’re looking for, you need to provide those. And in some circumstances, you will have to prepare and serve a Factum. A Factum is really your legal argument in writing, and there are specific rules about that. In some motions, you don’t need to a Factum, but in majority of cases,` you may need a factum with your documents.

There are 2 fundamental legislations in Ontario now, this is specific to Ontario Civil Courts, the Courts of Justice Act and Rules of Civil Procedure that deal with the issues of motion and any of the procedural matters. With respect to the Rules of Civil Procedure, the Rule 37 is the specific rule that deals with motions. You must review that rule before your proceeding, and also you must review any practice directions for your region for your municipality, so that you know how the motions are brought in that specific region and how they are heard.

Rule 76 is another rule, which is called the simplified rules and it has its own rules about bringing a motion, so you must review those rules. And we will in future lectures go through each rules, go through different types of motion, but this lecture is really to give you a broad overview of what a motion is, and what is the concept of a motion.

Small claims court has its own rules, and you can review the small claims court rules to understand how the motion is to be brought in the small claims court.

Okay, so in essence, you know if you use a motion effectively, the motion allows you to resolve some procedural issues, that’s important, or at times narrow down the issues, and in some circumstances, completely resolve the issues. So, if a motion is used effectively, it can save you significant time and significant cost. It’s a great tool, but it has to be used smartly, and it allows you to benefit from the overall court process in an effective way. Hopefully, this gives you a good sense of what a motion is, the basic concept, and then, in our future lectures, we’ll pick each kind of motion, we’ll talk about what that motion is, what are the circumstances and we’ll keep building on this basic knowledge about motion.

Please do write us back in the comments section on YouTube, or through any of these channels that we have listed, and we’ll be happy to answer questions, and provide more information in the future lectures, thank you for watching.

Show Notes:

N/A

Lecture Slides:

N/A

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 drafting a Statement of Defense in a civil court action in Ontario, and the example that we’re providing in this lecture is very basic, very simple, so that you could understand the fundamental concept of a statement of defense and how do you go about serving and filing it. We have already talked in previous lectures about how do you commence a court action a civil court action in Ontario in the Superior Court of Justice, we have covered some basic steps. We also have provided a lecture on drafting statements of claim, that is also there. We also have done another lecture on completing the information for court use form, which is also a step. So, today we are going on the other side of the situation, where we’re dealing with the defendant, once the defendant has been served with a statement of claim, what he or she has to do in order to defend himself?

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

And we’ll start with the basic example that we had used in other lectures, the case that we prepared was Mary had loaned $100,000 to John. John has refused to pay back that money and then Mary has gone to the court to seek a judgment against John for $100,000. We have also mentioned previously that there are 2 specific legislations, at least these 2, that are very important for you to review, because these relate to the procedural aspects of your court action and you need to know various steps, the timelines, the process, to properly defend yourself. Both of these are available online, we have referred them previously, we have shown you what these legislation look like and what kind of information they contain, so by all means check those lectures.

Now, we begin with the fact that, what if you did would you decide not to defend a court action? And you may have some legitimate reasons, legal reasons for not defending a court action and we’re not really covering, you know, all of those things, this lecture is not exhaustive or any of these lectures are not exhaustive, we’re covering the basic topics. So, for example, you may challenge, one of the reasons, you may not want to defend the court action, is you challenge the jurisdiction of the Ontario Court. You may believe that whatever Mary is claiming, whatever the facts, she is claiming, never happened in Ontario. Ontario has no relationship to it. It either should have been in another province or another country, and in that case, rather than defending you, bring a motion to have the matter dismissed, because of jurisdictional issues and whatnot. But we’re not covering those issues. Let’s say you are in a situation where you just don’t want to defend it for whatever reason. You think Mary has no case, you’re upset and you decide not to file defense or not to take any action, what are the consequences? Mary can go bring a motion in court and have you Noted in Default, Noting in Default means the court is now putting in its document that John has not served and filed his Statement of Defense so he has not taken the step that he was required to take in order to defend himself, so you have been Noted in Default. The consequence of having Noted in Default, is that you will no longer be entitled to any notices, any steps in that court action anymore because you’re not participating, so you’re not entitled to anything, so you wouldn’t know what further steps Mary is taking in that court process.

And then Mary can go and proceed with a motion for default judgment, and what that means is, Mary will say that no defense has been filed, so the judge award me $100,000 judgment against John, because that’s what I’ve claimed and she may very well get that judgment, and then she can proceed and have that judgment enforced against John. So ideally, if you have been served with the statement of claim, you really don’t have much option then to defend yourself, no matter how strongly you believe that the case has no merits. Because, only a court, only a judge in this matter can decide whether the case has merits or not, and so even if you find that this action is a nuisance for you, you have no option but to defend it.

First thing, you want to keep in mind is the timeline, that’s the most important part, because if you miss the timelines, then Mary can take those steps such as noting you in default and proceeding with a default judgment. So the timeline for filing of Statement of Defense is dependent upon where the statement of claim was served on you, and if you, in the previous lecture, Statement of Claim, we showed you the document, the Statement of Claim document, and you will see on the very first page of the Statement of Claim, the court has already provided some information to you, the defendant saying what are the timelines that you have available to you. And in that document, it does say that if you were served with a claim in Ontario, this being an Ontario claim, you have 20 days to file your defense. If you were served and not in Ontario, but elsewhere in Canada, or in the United States, you have 40 days, and if you were served outside of Canada and the US, then you have 60 days to file your defense. So where you are served is important, and you want to make sure that you note down the timeline for your filing of Defense.

Second point, you want to keep in mind is that your 20 days, 40 days, 60 days, whatever the case may be, begins from the date when you were served with a claim, it has nothing to do with the date of the issuance. Issuance is the date when the claim was issued, we’re talking about when you would actually served either by fax or in person or whichever way you received the statement of claim, your counting of days begins from there. Now, one more thing, you want to keep in mind is that there is a form of available online Rules of Civil Procedure form Cause Notice of Intent to Defend. If you fill out that form, serve it on the opposing side the plaintiff, file it with the court with the proper fees, then it adds 10 more days to your time or filing of defense. So if its 20 days that become 30 days, 40 becomes 50, and 60 and 70 days. So you can get 10 additional days if you file a notice of intent, but you must file it within the time period. So, if you had received 20 days within Ontario, then within 20 days you have to serve and file a Notice of Intent to Defend, in order to get another 10 days.

Now, let’s get into the steps that you are required to undertake to prepare and serve and file your statement of defense. The steps are basic, you download the form statement of defense, you draft your statement of defense, you serve it on the plaintiff or the plaintiff’s lawyer as the case may be, you prepare an affidavit of service, which is a document basically confirming to the court that you have actually served the defense on the plaintiff. Then, you print 2 copies of the statement of defense, you take your affidavit of service the original and take the court fees, and then go and file it with the court, and that’s how you are now in the court system, you get a stamped copy back, which indicates that you have filed your statement of defense.

Okay, so statement of Defense is an important document, what’s the purpose of a statement of defense? Essentially you are asking the opposite of what Mary is asking. So Mary is asking the court essentially, that the court should award a judgment against you for a $100,000. You are asking the court that the court should dismiss Mary’s claim in its totality or partially, whatever your position is, because Mary’s claim has no merit. So, that’s what you want out of the court, you want the court to dismiss Mary’s claim. And then why do you want the court to dismiss it, that’s your side of the story, you provide your facts to explain to the court or prove to the court or demonstrate that Mary’s claim has no merits.

So, what are the contents of statement of defense? The principles for these contents are no different than the principles that I had outlined and drafting of the Statement of Claim. You want to make sure that you describe facts in your statement of Defense, not evidence, you don’t need to talk about, you know, the email correspondence and quote the email correspondence or text messages. You’re basically providing a summary of facts, in terms of what actually happened. With respect to evidence, you will have an opportunity later in the court process to actually provide all evidence and obtain all the evidence from the other side. But for the purposes of statement of defense, you’re only providing facts. You want to make sure that your statements are concise, you’re not telling lengthy stories, your narrative this concise and simple, you want to make sure that you mention only relevant facts, irrelevant facts should not be part of the statement of defense and facts that are material. Material facts are those that actually when proven true, support your position, support your position in this case that Mary is not entitled to the money she is claiming. You must put each allegation in a separate paragraph. Allegation is generally used for every single fact that you are stating in your claim or in your defense, they’re all called allegations generally and in this process. So, each allegation is in a separate paragraph, and then you want to make sure that he’s paragraph is numbered consecutively.

The applicable rules that we have covered in here are no different than what we have covered in a Statement of Claim, the Rules of Civil Procedure Rules 25 to 29 that deal with pleading, Rule 18.01 deals with the service, and then Rule 26 deals with the amendments.

So, we have already shown you the rules of civil procedure, you just go on Google type in “Rules of Civil Procedure”, and then you get the rules of civil procedure, here you can check the contents and I said. When you scroll down, you see here, commencement of proceeding is 13 to 15, and then pleadings are 25 to 29, so you can click on these rules and read all of those. With respect to the forms, as I said, you type it in Google “Rules of Civil Procedure form”, and you see all of the forms that are listed here, and statement of defense as you notice is form 18A, and I previously explained that these form numbers relate to this specific rule in the Rules of Civil Procedure, so that’s helpful. You click on it and it will open a Statement of Defense document, this is the form that is available online and you can download it. And I have already prepared a Statement of Defense for the same matter, just as an example of very very basic, but to give you a sense of how you are drafting your Statement of Defense. So, this is the statement of defense, the opposite side, you want to make sure that you insert the court file number here, so that when you’re filing it, the court knows what court file number it is. And then, you have Mary Kozner, John Smith, this is the plaintiff, this is defendant, you copy it exactly as it was in the Statement of Claim, and then, you draft your Statement of Defense. When you started the Statement of Defense, generally speaking, first thing you want to address, is what is it that you agree or disagree from the statement of claim. So, if there are certain things that you admit, then you would like to mention that. So, for instance, the defendant John Smith admits paragraphs so and so of the Statement of Claim. So, for instance in this case, if you admit that you and Mary were childhood friends, then you would refer to that paragraph and say I admit that we were childhood friends. If you disagree with every single thing that is stated in the Statement of Claim, then you basically say John Smith denies each and every allegation raised in the Statement of Claim, so that’s how you do it. If you have admitted to certain things, then you say you deny certain things, but you want to make sure that you cover that, you don’t leave out any paragraph of the Statement of Claim hanging, not having addressed in this way. So for the purposes of, you know, being cautious, many statement of defense generally start by saying that the defendant denies each and every allegation in the Statement of Claim unless specifically admitted. And so, when you start with that, then you can put your side of the story and say yes, we’re childhood friends. So, you start with the denial, and then you start admitting that. And one way, it’s sort of your preference, you can do it one way or another, some lawyers prefer it doing this way, because then you can have your complete story the way you put it. So, you can start by saying we’re childhood friends and then move on with the story, as opposed to just picking which parts you agree and which parts you don’t. Anyway, moving down, you know, in this example, Smith agrees that he did receive money from Mary, but what he disagrees is that this was not a loan, but this was a gift, right? And so, then, he adds his side of the story. So, because the court wants to know, okay Mary says she gave you $100,000, you admit that you received $100,000, so what actually happened? Is it a loan or is it a gift? And so, you are now providing your side of the story, and in this case you’re saying an example that not only you and Mary a childhood friends, but your fathers were best friends and then at some point in the past your father had helped Mary’s father when he was having financial difficulties, and so now that you were having financial difficulties, Mary decided to help you out and give you a gift not as a loan, and then within a few months, there were some family disputes, family fights between children which got the whole families embroiled in it to a point that you’re not even now in a talking terms, and Mary has out of spite maybe commenced this action in retaliation. So, what you’re saying is that essentially, she gave this money to me as a gift, but now that we’re not talking, we’re not friends anymore, she is now changing her mind retroactively and trying to say that this was a loan not a gift, which is not true right. So, if this story has validity, if the court agrees with this story, then the court may throw away throw out Mary’s court action, so in the end, what you’re saying is that she has no claim and you are asking this honorable court to dismiss the claim with cost, and then you are agreeing that the case can be tried in on in Toronto. You put your information here, enter the date and you put the Mary’s lawyers information or Mary’s information, whichever the case may be, and then you complete the back page and you complete the form and serve it on Mary, and then take it to court for filing. So this is a very, very simple example of a statement of defense that you can file.

Now, with respect to the court fees, I had mentioned in previous lectures that if you type in Ontario court fees, you will come to this regulation, Ontario regulation 293/92, which talks about all kinds of court fees, and then if you scroll down you’ll notice that a statement of defense and Counter Claim adding a party, the fee is $220. So in this case, you will take $220 to the court, and then file your statement of defense.

So, in conclusion, you want to keep in mind that your statement of defense is a very important document. And you need to understand the underlying principles, at least in terms of how you’re going to defend yourself. So, in this case, the example that we’re using is the underlying principle is that a gift is something that is given and it’s not returnable, a loan is a contractual thing and you have to return it. So if that’s the legal principle, then the fact that you’re arguing is that this was a gift and not a loan, and therefore the court should throw out, should dismiss Mary’s claim. But in different cases, your case may be a bit more complicated, factually and legally, and so one approach you could have if you’re not clear about your legal issues, is that consult with a lawyer, sit down, have the case reviewed, make sure you understand it, even if you’re drafting the defense yourself, have a lawyer review it just so that you understand that you are doing what needs to be done to defend your court action, and you don’t miss out anything. So, these are some of the ways you can do it.

If anything is unclear, please contact us on through any of these ways, and we’ll be happy to answer those questions and add more lectures. We’ll get to in the next lecture, the drafting of our reply and we’ll continue to use this example, and hopefully that will give you a full sense of how pleadings are drafted in sort of this basic example. So, thank you for watching, and I look forward to seeing you in the next lecture.