Archive for the ‘Uncategorized’ Category

Temporary Lay-off in Ontario: Essentials You Must Know [video]

Tuesday, December 26th, 2017

This lecture explains the basic principles regarding the law of temporary lay-off of employees in Ontario. It explains when an employee can be temporarily laid off and the limits on the time period of the layoff. It also explains when a temporary lay-off automatically becomes a termination.

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

Show Notes:

N/A

Lecture Slides:

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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 common misconceptions about the temporary layoff in Ontario. The lecture is specific to Ontario, the principles are similar in other provinces but if you want to understand the temporary lay-off procedure and law in your own province you must look into your own legislation as well in addition to this lecture. There are some of the common misconceptions about who can be temporary laid off and so we’ll cover all of those issues in today’s lecture.

We’ll begin 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.

Temporary lay-off, the first thing you want to understand is that there is no Common Law Right that is given to an employer to temporarily lay off an employee. The right is provided specifically under the legislation which is called Employment Standards Act 2000 in Ontario, and so under that legislation the employer has a right to temporarily lay off an employee, and then I’ll talk about the extent of that right in the next slide. But essentially in a temporary lay-off an employee’s employment is temporarily interrupted. The employer comes to the employee often times and says “look the business is slow we can’t keep everybody to be employed for a certain time period so we’re temporarily laying you off and then we have a right to recall you so when the business is okay we’ll call you back and then you must come back, and if you don’t come back then you effectively resign or abandon your employment.” Very common in production environment, in factories, in industrial areas, and a lot of times that happens around Christmas time when the business is slow the employer will come to employees and temporarily lay them off from their work for a certain time period and would recall them when the business is okay. So that’s essentially what a temporary lay-off is: it’s a temporary interruption in employment but you are still an employee of the same employer and then the employer has a right to recall you.

And during the time off the temporary lay-off you continue to have your benefits, if there is this pension plans that your part of employer continues to contribute to that, if you’re a part of a medical benefits plan your employer continues to contribute to that, and then the employer make certain payments, some payments are made by Employment Insurance so Service Canada and so you get your record of employment and you file it with Service Canada and you get some money from E.I.

So the key question here is that whom does this temporarily lay-off under Employment Standards Act 2000 apply to? Does it apply to every single employee – and we’re talking about a non-unionized environment – does it apply to every single employee? Can an employer come to any employee and say that “I am temporarily laying you off because of whatever reasons?” Is that a blanket right? And the answer is no, absolutely not. This is a common misconception a lot of people have that just because they’re employed and employer has an inherent right to temporarily lay them of because of their business needs and the answer is No. There must be a specific clause in your Employment Agreement that gives that specific right to the employer to benefit from this section of Employment Standards Act. So if you want to check whether in your situation in your specific contract whether the employer has a right to temporarily lay you off then you want to look at your employment contract, your employment letter and it should have either a specific clause saying, that we retain the right to temporarily lay you off under Employment Standards Act, or you know a sort of a general clause saying that we retain all rights that are provided to us in under the Employment Standards Act 2000 and we will enforce them as necessary. But something to that there has to be specific language in your contract that allows the employer to benefit from temporarily lay-off provision of the Employment Standards Act, absent that clause the employer does not have the right to temporarily lay you off.

The second part that you want to keep in mind is that let’s say if there is no clause in your employment agreement that gives this right to the employer, there may be some argument based upon past practices. So for instance if the employer had temporarily laid you off a year ago or two years ago or some time in the past, and you had not challenge that temporary lay0off and you actually went away and then came back at the time of the recall, the employer may have an argument that by your conduct by accepting the temporary lay-off and coming back at the time of recall you have demonstrated acceptance to a clause in your employment agreement that allows the employer to temporarily lay you off. So it’s important for you to understand that if the employer does not have a right to temporarily lay you off and you are not willing to give that right to the employer then you must challenge when you are temporarily laid off, because if there is no right to temporarily lay you off then that attempt to temporarily lay you off is effectively termination. So you stand up and you raise that issue and you claim that as terminations and then it gets a bit complicated how the issues get resolved, there are practical ways of getting these things resolved, but essentially what you want to keep in mind is that there’s no fundamental, there’s no inherent right, the right comes from a specific clause in your employment agreement that allows the employer to benefit from this provision of the Employment Standards Act. And in some cases the employer may rely on past practice with respect to you, and it’s important for you to understand that if the employer had laid off other employees who are similar in terms of their job duties as you, and they had accepted it but that does not mean that the same practice would apply to you, because every employment contract or agreement is a separate no matter if the job duties are similar.

Okay so one more thing you want to keep in mind is about the time period of temporary lay-off, the provisions in the Employment Standards Act are specific. Section 56 Sub 2 of the E.S.A. actually provides for the time period. And so let’s look at 56 Sub 2 it’s right here, “for the purposes of Clause 1 Sub C, a temporary lay-off is a lay-off of not more than 13 weeks in any period of 20 consecutive weeks or a lay-off more than 13 weeks in any period of 20 consecutive weeks if the lay-off is less than 35 weeks in any period of 52 consecutive weeks.” So what that section is saying is that in 20 consecutive weeks if you are temporarily laid off for 13 weeks or less then that is a temporary lay-off. And if it exceeds 13 weeks in 20 consecutive weeks then you want to look at the next part, which is that does it exceed 35 weeks in the 52 consecutive weeks? So if 52 consecutive weeks is really a year or so if you have been laid off for less than 35 weeks in a year then that could be a temporary lay-off, but if it’s more then that becomes termination and we’ll talk about it. But remember I keep hammering this point that there’s no inherent right that the employer has to do this. The right comes from a specific clause in the employment agreement.

Okay so what happens when the time period of a lay-off exceeds the 13 weeks in 20 consecutive weeks or 35 weeks in 52 consecutive weeks then we look at Section 56 Sub 1 Sub C, which talks about, 56 Sub 1 says, “an employer terminates the employment of an employee for purposes of Section 54 termination, If the employer lays off the employee, lays the employee off for a period longer than the period of a temporary lay-off.” So in other words if the employer has laid you off for more than 13 weeks in 20 consecutive weeks or more than 35 weeks in 52 consecutive weeks then that becomes effectively termination, so the employer doesn’t have to say that it automatically becomes termination.

And another part that you want to remember is Section 56 Sub 5, which says what is the date of termination. So according to that section once the time period exceeds and it automatically becomes terminations your date of terminations is in fact the first day when you were laid off so that becomes important. And it’s an important thing to note because that will have an impact on when your Employment Insurance begins or what your terminations rights are and when do they begin and how do you deal with that. So that’s why I brought this to your attention that the date of termination also is important.

So in conclusion what is it that you want to keep in mind? You always want to understand clearly that there is no automatic right given to an employer to temporarily lay off an employee. The right comes specifically from your employment agreement that you have signed or that you have accepted, and that agreement must have a specific clause that allows the employer to temporarily lay you off, and if there is no clause, then there is no right. Then any time an employer attempts to temporarily lay you off that becomes termination. And so also keep in mind the time period, the two time periods that I mentioned, 13 weeks and 35 weeks because if it exceeds those, if the employer exceeds those two time periods and has not recalled you then you must claim your termination rights. Also remember that at the time when employer temporarily lays you off and the employer has a right to temporarily lay you off, the employer does not need to provide a date of recall at that time, the recall date can be provided later as long as it is within the time constraints that we’ve just talked about.

So in this context keep your termination rights in mind because if it does become an effective termination or even if you’re unsure whether the employer has the right to temporarily lay you off or not you want to think about your termination rights, make sure that you do not undermine your terminations rights which could be significant in some cases and we have other lectures that talk about it.

But this was sort of a brief gist of common issues that arise and misunderstanding about temporary lay-off, hopefully this lecture makes it clear. If you have any comments any questions please share with us and we look forward to seeing you in the next lecture, thank you for watching.

Steps for Scheduling a Motion in an Ontario Superior Court [video]

Tuesday, December 26th, 2017

This lecture outlines the steps a party must take to schedule a motion date in an Ontario Superior Court. For those unfamiliar with the scheduling process, these steps could be complex and daunting. This lecture simplifies those steps and points towards the resources that can provide additional guidance to parties based on their jurisdiction.

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

Show Notes:

N/A

Lecture Slides:

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 scheduling a motion in Ontario Superior Court, and we will provide you with specific steps that you take in order to book your motion. A lot of people who have not brought a motion, including lawyers may not be exactly familiar with the steps that they need to take, because each region in Ontario may have their own procedure of scheduling a motion, so you need to be on top of the applicable Practice Directions for that region to figure out how do you actually book a motion. And so we’ll talk about those steps in this lecture.

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

I want to you to keep in mind that the discussion is sort of limited in today’s lecture. It is not comprehensive, it does not cover every single kind of motion that you may need to bring in a court. And depending upon the region in which or the specific court in which you’re bringing this motion the process may be slightly different. So what should you carry from this lecture is that, you get an overview of how do you actually go about scheduling a motion, booking a motion, you get an overview of that. You get a direction or a guidance in terms of what do you need to do if you’re still not sure what kind of documents, what kind of online websites that you look at, who do you call if you need to figure out the process.

So most of the steps that we’re talking about will cover generally Motions on Notice. And Motion on Notice, if you read the rules on motions what it says is that a motion should be made on notice, meaning the other parties who are affected by that motion must have a notice of that unless there are certain reasons why it shouldn’t be, and then it could be done without notice. So mostly this covers the motions that are on notice, they could be contested or uncontested. Contested motions are those where other parties do not agree that what you’re asking from the court should be granted. Uncontested are the ones where they either agree that the relief you’re asking should be granted or they may not have any position on what the court will let which should decide.

If you’re bringing a motion without notice, an Ex-parte Motion, before a judge in Toronto then again this lecture applies, in other jurisdictions you’ll have to check what the Practice Directions say there. You want to keep in mind that if you’re bringing an Emergency Motion then this process does not apply. Emergency Motion is an Emergency Motion, you contact the court you try to find a master or a judge that’s available and then you go and bring your motion. Similarly Injunction Motions are sort of Emergency Motions depending upon the context of the motion. But in those motions you may not need to follow this process that we’re talking about today. Ex-parte Motion before the judge in Toronto, I have a separate lecture on that you can review it. Masters in Toronto, I believe they sit two days in a week, Tuesdays and Thursdays, and you can actually prepare your motion material and show up in the court in the morning and have your matter heard by a master. Summary Judgment Motions, there’s a separate process.

So depending upon the kind of motion you are bringing the process for going about scheduling that motion may be different. And so what you want to carry from this lecture is that, a) you want to read the Rules of Civil Procedure with respect to the motion that you’re bringing and what needs to be done, and then secondly you want to make sure that you read the Practice Direction of the Ontario, the province wide and the Practice Direction specific to that region so that you can understand specific rules for that. And I’ll show you a website where you can go, but if you type in Google “Practice Direction Toronto”, “Practice Direction Newmarket,” you know, you will find those Practice Directions they are available to the public.

So what are the steps in scheduling a motion? First you have to determine whether your motion is before a master or a judge, because you would need that information before you actually schedule it. You would need to determine whether your motion is a Long Motion or a Short Motion. There is a difference, and again within Long Motions there is a different process if the Long Motion is before a judge or if it is before a master and we’ll talk about it in a bit. And then you will actually go about booking or scheduling a motion date with that specific court.

So a motion before a master or a judge, you need to figure that out before you actually schedule a date because the court will ask you about it. And so in order for you to determine whether your motion is before a master or a judge, you check out Rule 37.02, you want to keep in mind that this determination whether a motion should be before a judge or master is not always easy. I’ve seen oftentimes lawyers disagreeing whether a motion should be heard before a master or a judge. And understanding the distinction and figuring out whether a motion should be heard before a master or a judge is important. Of course every judge can hear every single motion, but if the motion can be heard by a master and you bring it before a judge, the judge may refuse to hear that motion; and most likely will refuse to hear that motion because the master does have a jurisdiction, so you’re wasting the judge’s time who has other motions to attend or other matters to attend.

So figuring that out is important let’s see if we can check out the Rule 37.02, it talks about jurisdiction to hear a motion at 37.02 “Sub 1 a judge has jurisdiction to hear any motion and the proceeding” as I said, but with respect to master, master has a jurisdiction where you know the power to grant. So master has jurisdiction for all motions except the following: “Where the power to grant the relief sought is conferred expressly on a judge by a statutory rule,” so if something says specifically that it is to be heard by a judge hen it has to go to a judge. If you’re setting aside, varying, or amending an order that was given by a judge, then a master because master has a limited authority and less than a judge, will not be able to vary or amend a judge’s order set it aside. “To abridge or extend a time prescribed by an order that a master could not have made.” So again similar to what I read before. “For a judgment on consent in favor of or against a party under disability, relating to the liberty of the subject,” I’m not clear what that means, “under Section 4 or 5 of the Judicial Review Procedure Act in an appeal.”

So you know these are sort of the broad guidelines but I can tell you that practically speaking you may not get it right. I mean only last week I was in court attending a motion before a judge where two lawyers appeared and they had booked a motion respecting undertakings and refusals before a judge, and it is commonly known that those motions can be heard by a master, so the judge was not too happy about it and she sent them away to a master to have that motion heard. So you have to figure out before you book or schedule a motion whether your motion is going to be before a master or a judge. And just sort of as a comment on masters or judges, I think I have a separate lecture on this too, but masters in Ontario are being phased out. Masters as now you can understand are like judges but they have lesser powers than judges, and they used to be all across and available across Ontario but I believe they’re being phased out. And I believe, don’t quote me on it, but I believe they’re only now in Toronto and when those masters retire, then there will not be any more appointments and they’ll only be judges. But so far you have masters and judges, so you want to make sure that you understand whether your motion is before a master or a judge.

Step number 2 you need to determine whether your motion is Short or Long Motion, so you want to check the Practice Direction to ensure whether you understand what constitutes a Short or Long Motion. In Toronto if your motion will take two hours or more by all of the parties, not just you, so you have to make your submissions, your arguments, and the opposing side or sides have to make their submissions and if all of that time is two hours or more then that’s considered a Long Motion. And if it’s shorter than that then that’s considered a Short Motion and there’s a separate process for scheduling both kinds of motion.

You want to make sure that you estimate your time fairly. If you believe that the motion realistically would be heard in more than two hours, and just because you can’t schedule it quickly you write down that it will be one hour and fifty-five minutes and it will actually take longer than that, you will get the wrath of the judge or the master. So you want to be careful because when the resources are allocated for scheduling a motion they are done very carefully, and if you overestimate your time or underestimate your time, if you’re wasting the court’s time, then you get penalized. You also need to confer with other parties before scheduling a motion on time and also on the dates. So you call or contact your opposing counsel or other counsel or other parties and ask them for their availability for the motion before you actually schedule a motion. But in some cases you can go ahead and schedule a motion, but in the majority of the cases you must contact the parties and find out their availability.

Now booking a motion date. So you can book a motion with a phone call, email, or a fax, and you call and you find out the court’s number, you can Google it and you will see that there the Ministry of the Attorney General does provide courts’ addresses and phone numbers and you can call them and they will be various options. And you end up if it’s a civil motion before a master or a judge, you get to that number, usually they’re called motion scheduling clerks, at least in Toronto, in some of the courts there may be pretrial coordinators who may be assigned the task of scheduling motions. So you call them or you email and fax and I’ll talk about that, you email or fax a Motion Requisition form that’s what you prepared.

And so let me show you a Motion Requisition form that I had prepared for a different matter and it will give you a sense of what you do. I had actually in one of my previous lectures on Default Judgment Motions I had shown this form, but I did not go through in detail, so I’m taking this opportunity to sort of go through it in detail. So this is a requisition to schedule a Short Motion application before a judge or a master, either of the two. Check that box and you notice here that you can send this form a completed copy, it’s for Toronto by email to this email address or by fax and this is the fax number.

Okay so filling out the form our first item you have to fill out your court file number and you can find it on your Statement of Claim or Statement of Defense and the court file number, then you type in the short title meaning, “Jane Doe versus ABC Ltd,” etcetera. So whatever the title is and again this title should be identical to or similar to what your Statement of Claim or defense or pleading state. Then if you are the moving party are you a plaintiff, the defendant, or somebody else you check that box. Is this case under case management? If it’s under case management you would know it and you will check that box, otherwise whether it’s under simplified procedure or ordinary procedures. So matters under $100,000 there’s a Rule 76 under Rules of Civil Procedure. You would know by this time because you have issued a claim or you’re defending a claim so check that box whichever is appropriate. Is motion on consent, is it opposed, unopposed, ex-parte? So all of these as you notice are important pieces of information that the court needs to properly schedule your motion. So accurate information would help the court to schedule it properly. Estimated time of oral arguments by all parties. So this one is the one that I said is very important. In this case it was it we suggested it was 30 minutes, because it wasn’t a motion, it was an ex-parte motion so only I was making the submissions. Then you talk about the nature of the action, is it a contract dispute, is it an employment law dispute, personal injury, you specify that. Then you talk about the rules under which you’re bringing this motion and the ones that will apply, and you list all the rules that apply and you notice that I’ve listed a number of rules here. And so that gives you an opportunity so that you prepare for the motion in advance and so you go through the rules, the Rules of Civil Procedure and figure out which specific rules would apply, and then you write them down here so the judge or master has an idea of what to expect at that motion. Then is the motion before a master or a judge? If it can only be heard by a judge, then you write down here or you say “master or a judge” and it doesn’t matter. Whether a particular judge or a master is seized of all motions, in some cases it is the case, if that’s not the case then you say no, or not applicable. Is the proceeding governed by Simplified Rules? If it is, you have checked this box. Does the motion relate to undertakings or refusals? If the answer is “no,” you write that down. Is it a Summary Judgment motion? Is the application or motion urgent? Is any party self represented? And if it is then you say yes. Is this proceeding under case management? Already asked but you check the box. Does the motion application require a bilingual judge or master? The answer is no. And then here you provide at least two dates to the court and then these dates you obtain prior to putting the dates here. So this is important, you have conferred you have spoken with other counsel and they have – sorry, step back. You have contacted the court first either by email or phone and ask them what are the dates that are available for a motion before a judge or a master, and they will give you certain dates that are open. Then you check your calendar and look at your availability and contact opposing counsel or other parties’ counsel or other parties to check their availability and then you select two or three dates here and then you put them down and then when you send the form the court will pick one or one or two dates and then it will schedule it. So that’s how the scheduling will take place, so a number of steps.

And when you call the court and find out the availability you can’t hold off any date. So it’s really a matter of you figuring out the available dates, talking to the opposing counsel, getting the day choices over here, and sending this to the court and blocking those dates, so you’ll have to do that.

Okay so you’ve sent the Motion Requisition form. You want to and I can’t emphasize more that you have to watch the timelines for all of the steps in a motion. In this case once you have booked the motion, the court has advised you the motion is booked, you have in Ontario 10 days to file your Notice of Motion and fees to make sure that the date remains scheduled for your matter, otherwise you will lose that date. You want to make sure that you follow the timeline for delivering the motion record, serving it and filing it with the court. And you want to make sure that you confirm the motion, so there’s a form for confirmation of motion which must be sent I believe three days or two days before the motion is heard, I have a separate lecture I believe on that. But you want to make sure that these are all the steps that you follow, and you don’t miss out on any steps, because if you do then you will end up losing the timeline for the motions.

I talked about the Practice Directions, I’ve opened a Practice Direction for Toronto, and like I said you can Google the Practice Direction for other regions and you will find that. And if you notice in this Practice Direction, scheduling a Long application, a Long Motion, a Summary Judgment Motion, or an Urgent Motion before a judge in Toronto, you can’t send a motion requisition form. You have to attend at Civil Practice Court before a judge in order to do all of this, and then if you want to attend Civil Practice Court there is a separate form for it and you can download that here. So this if I scroll up this is the Consolidated Practice Directions for Civil Actions applications and procedural matters in Toronto region. And similarly you can go and find Practice Directions for other regions, you can scroll down here, see Central East, Central South, so all of these are available. The key thing is you want to make sure that you read those Practice Directions before you actually go about scheduling it and then you follow all the steps that are in those Practice Directions. So hopefully this gives you a broader understanding of how do you actually go about getting a date, because a lot of people just don’t know and it becomes complicated. So this gives you a sense of how do you actually get a date, to go and schedule your motion, and then the next steps are…and I have separate lectures and that. What do you need to prepare? How do you go about preparing those documents, serving them, and filing them with the courts?

Hopefully this is helpful, if you have any comments and suggestions please feel free to contact us and we look forward to seeing you in the next lecture. Thank you for watching.

Starting a Human Rights Application in Ontario [video]

Tuesday, December 26th, 2017

This lecture provides a basic overview of the application process respecting human rights matters in Ontario.

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:

Links mentioned in video:
http://www.sjto.gov.on.ca/hrto/forms-filing/
http://www.hrlsc.on.ca/en/home
https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html#sec1

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 give you an overview of how to commence a Human Rights application in Ontario. We’ll provide you with some basic steps so you get an understanding of how to commence this process.

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

What are we going to talk about today? The first and the foremost thing you want to understand is that the issue that you are raising, the dispute that you’re raising, is that considered legally considered discrimination or not? Would that fall under the general category of unfairness, harassment, workplace harassment, or something else or would it be squarely an issue that has to be dealt with by discrimination? We’ll talk about your status if you are an ordinary citizen and you went underwent a discrimination matter then your employment status is not relevant, but if your matter relates to your employment, either you’re a former employee or present employee then will talk about how your employment is relevant to what you do with your discrimination case. We’ll talk about Human Rights Tribunal’s jurisdiction it’s an important topic and you must understand that the jurisdiction issues clearly before you commence a Human Rights application. And we’ll talk about some of the resources that are available to you if you wish to commence a Human Rights application.

So what is the discrimination criteria? The important part that you want to understand is that for you to claim discrimination it must be based on one of the grounds that are provided in the Human Rights Code when you’re talking about issues in Ontario. If you’re dealing with a company or an organization or an employer who is federally regulated then you want to look at Canadian Human Rights Act, because that deals with federal legislation. If you’re in another province than obviously other provinces have their own Human Rights legislation and you must look at those to see whether your specific issue falls under the category of discrimination in those legislations. Most of the provincial legislations are similar, but there may be certain differences and you want to make sure that you understand that. So the key message here is that there are specific grounds that are listed in Human Rights legislation and your discrimination, the facts of your discrimination, must fall under one of those grounds, and if they don’t fall under those grounds then you don’t have a claim for discrimination.

What you want to understand is that there’s no common law cause of action. What this means is that if you remove these legislations, let’s say there was no Human Rights Code, there was no Canadian Human Rights Act, there was no legislation in Canada that existed that provided certain protections for Human Rights, then you cannot go to court and commence a tort proceeding saying that there’s a tort of discrimination, there’s no such thing. So the courts or the tribunals draw their jurisdiction their power from these specific legislations, and that’s how you can get to a claim for Human Rights.

Let’s go through Human Rights Code of Ontario and understand this a little bit better. Go to Table of Contents you will notice that Part 1 of the Human Rights Code of Ontario talks about freedom from discrimination and it has about 9 separate sections, and each section deals with a different subject matter: services, accommodation, harassment and accommodation, employment, so on and so forth. So let’s pick services as an example and see what the code says. Every person has a right to equal treatment with respect to services, goods and facilities without discrimination because of, and now the grounds are listed: race, ancestry place of origin, color, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, or disability. So I believe these are 15 specific grounds, if you are a matter if your dispute is based on one of these grounds then you do or you potentially have a claim for discrimination on the basis of services, on the basis of one of these grounds. So essentially what you’re saying is that this restaurant, this bar, this organization treated me differently from others because of my race, or because of my disability, or because of my pregnancy, and so on and so forth.

So if you fall under one of these categories then you may have a potential claim for discrimination, if you don’t fall in one of these categories then you don’t. So it is important for you to be clear whether your case falls under the definition of Human Rights Discrimination in the respective provincial legislation or the federal legislation if that applies.

Now let’s talk about status. As I said if your matter is not related to employment then it doesn’t matter, your status is not relevant. But if you are complaining about discrimination with respect to employment, then it’s important for you to understand what is your status and then which status allows you to go where. If you are unionized employees then you have two options with respect to your Human Rights application. You can either file a grievance through the collective agreement it’s called the Grievance Arbitration Process so you can choose that or you can file an application with Human Rights Tribunal for Discrimination. You cannot do both; you cannot finish one and then start the other. You basically choose one or the other. There may be specific circumstances in which you may have gone through a grievance and may not be satisfied and the Tribunal may still be willing to hear your application, but those are very very limited circumstance. Generally speaking, you have the option to choose one or the other but not both.

If you’re a non-unionized employee you have only one option. Which is to go to the tribunal and file your Human Rights application. I put a question mark with the court action and I’ll talk about it in the next slide, in certain circumstances you may be able to go to court for your Human Rights application, but generally speaking you cannot.

So what is the tribunal jurisdiction? In this case because we’re talking about Ontario we’re talking about Human Rights Tribunal of Ontario which is the body that deals with all the all the discrimination issues arising under Human Rights Code. Canadian Human Rights Commission and Tribunal are two separate bodies with different functions, but they deal with Human Rights matters that relate to federally regulated entities.

Okay so what you want to keep in mind is that when you look at Human Rights Code you will find there’s one specific section that says that Human Rights Tribunal has the exclusive jurisdiction to deal with Human Rights matters. And I want you to understand the part of jurisdiction and exclusivity both. So when we’re talking about jurisdiction what you want to understand if you’re not clear about what a jurisdiction is, jurisdiction is really the power of the judge or that court to decide upon your specific issue and grant you the remedy. Does that court have that power or does it not? And what you want to keep in mind is that not every single court in Ontario or in Canada has the power to deal with every single issue that may come before them, no. They draw their power from specific legislation, and their powers are limited to that legislation. So a common example I can give you is that when you go to Small Claims Court, the judge in Small Claims Court only has the power to grant remedies up to $25,000 and anything beyond $25,000 he or she does not even have the power to grant you that remedy, whether or not he have a good case or not, so there are limited powers.

With respect to jurisdiction for Human Rights matters the Human Rights Code say that Human Rights Tribunal has the exclusive jurisdiction for Human Rights matters, so that means you cannot go to court for Human Rights matters. So far it’s simple but then it gets complicated. How it gets complicated is that let’s say if you have a factual dispute and on the one side it’s a discrimination issue, but in addition to discrimination there is another legal dispute that arises because of those facts, and those facts or those legal matters are not in the power of Human Rights Tribunal. So let’s talk about it by way of an example.

Let’s say you are filing a Human Rights application or you have a Human Rights dispute with respect to your employment, but at the same time you’re also terminated from your employment and now you have a Wrongful Dismissal action, which may or may not be related to your Human Rights application, but now you have two issues against the same organization, the same company, the factual matrix, the underlying facts are the same or similar for both matters. So now the law does not say that you go for your discrimination issue to the tribunal and go for the Wrongful Dismissal issue to the court, it doesn’t say that. So in that situation you have an option to go to the court, take your entire case to the court, and the court will deal with your discrimination issue and the Wrongful Dismissal action. So that’s sort of a basic example but there could be other categories in which your matter may overlap into more than one legal category. Some of them may not be under the jurisdiction of Human Rights Tribunal and so the appropriate course of action is to go to the court.

Now when we deal with Human Rights matters, not only that we look at this issue the jurisdiction issue, but we look at some of the strategies in terms of what will get us the best results respect to the specific issues. Sometimes we take the entire case to the tribunals because that may be a better place strategically. Sometimes we take the entire issue to the court because that may serve our client’s interests better. So as long as you understand that jurisdiction is an important factor that you have to consider you will not end up going to the wrong place.

Now let’s talk about some of the resources. Human Rights Legal Support Center is an organization that is created by the government and it provides free services to applicants, not to respondents unfortunately, but just to the applicants who believe that they have been discriminated. So I have provided the website here and there should be contact information here. But if you type into Google, “Human Rights Legal Support Center,” and make sure that you understand the wording correctly, because you know with Human Rights you can mix up the tribunal, the commission, the support center, so you want to be clear that “Human Rights Legal Support Center” is the entity. If you believe you have been discriminated they can they have lawyers they have other staff and they can provide you with free advice and free services to fight your Human Rights matter, and bring an application on your behalf to the Human Rights Tribunal if necessary. So contact that organization if you wish to not hire a lawyer and then seek advice for free.

Human Rights Commission also has a number of resources, Human Rights Commission of Ontario essentially is a body that does a lot of research on Human Rights matters and posts and puts out a lot of tutorials and other information about Human Rights issues so it’s a good body to look at and you can check their website and then use that as a resource. Human Rights Tribunal of course has its own website and you can always go to their website, and they have a lot of resources, and they actually have all the forms and stuff that you need for your Human Rights matters. So it’s a it’s a good place for you to go, understand some of the issues, read their resources, all of the laws, rules, decisions, they’re all here. You can understand the procedure and then benefit from that. And all the forms are here, you can actually have these forms and smart forms, which you can actually complete online and then file electronically, but all the forms that are used in Human Rights matters in Ontario are provided by Human Rights Tribunal of Ontario.

Okay so what do you want to keep in mind, is that the most important part that you want to remember is that whether your specific issue comes under the definition of discrimination or not because if it doesn’t you will be in the wrong place going to the Human Rights Tribunal will not help you. Then you want to be very clear where do you want to file your complaint, should it be filed as a grievance procedure should it be filed with the Human Rights Tribunal, or should you commence a court action in Ontario. Also you want to make sure that you line up your resources so that whatever help you need with respect to the processing of your application you have that lined up. And hopefully you’re able to present your case in a better form to the tribunal or to the court.

We’ll keep building on this information but we at least wanted to tell you what the basic process is to file a Human Rights application and what are some of the resources you need to go if you want to do some further research. We’ll keep building on it in our future lectures and if you have any questions or any comments please share with us and we’ll be happy to include more topics and more issues with respect to Human Rights matters. Thank you for watching.

Small Claims in Ontario – 5 Basic Steps [video]

Tuesday, December 26th, 2017

This lecture provides an overview of the basic steps in a small claims court in Ontario.

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

Show Notes:

N/A

Lecture Slides:

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 will provide you with an overview of the basic steps in a Small Claims matter in Ontario. If you have watched any of our other videos, you will notice that we have a video on six basic steps in a Civil Action in Ontario. Small Claims is slightly different, the steps are slightly different, a little bit simpler, but we’ll cover those in today’s lecture.

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

We have talked about these two legislations in many of our videos; these are the basic legislations that apply to civil matters, the procedures in Ontario Courts. They have rules that govern the steps in which a matter can proceed in courts. The Courts of Justice Act is the overarching legislation, and underneath we have Rules of Civil Procedure which deal with matters that are Superior Court of Justice, and then we have Small Claims Court rules which deal with matters that relate to Small Claims Court. You can Google both of these legislations and they are available online for free and you can review and understand the information that is provided in these legislations.

So what are some of the basic steps in a Small Claims Matter? The first step is pleadings, which is no different than any other step. Pleadings is if you are issuing a claim then you prepare your claim and you serve it. If you are a defendant you prepare your defense and you serve and file it. So those are called pleadings. If you have a counter claim, it has a slightly different name in Small Claims Court, we’ll explain that. But pleadings are really your fundamental case. Why you are asking the court to do certain things for you. Either you’re asking money, then you explain in the pleadings how much money you are asking the court to order against the other party and what are your reasons. Similarly if you’re defending what are your reasons for the court to say that they must throw the plaintiff’s case out. Second step is witness list you’ll have to serve and file a list of your witnesses that will go to trial; we’ll talk about it. We’ll talk about in Step Three additional documents that you may need to serve. Step number Four is a Settlement Conference and the final step is trial.

Okay so if you are the plaintiffs if you are the party was commencing the court action then you will prepare what’s called the claim. The forms for the claim are available online, you just type in Google “Rules of Small Claims Court Forms” and you will see that all of those are listed here, let me sort of give you an example so you can see what those forms are. Type in “rules of small claims court forms” here it is. And lets open these forms so I can show you. All of these forms are numerically listed, and generally the forms relate to the specific rule that is in Small Claims Court. So Plaintiff’s Claim is Form 7A, you can click on it and open the document in Word, and you will see that it has a lot of information that you need to fill out, and we’ll explain that in a separate lecture. But this is the Plaintiff’s Claim form you can add additional documents to it, and then get it issued from the court and then serve and file it. So that’s essentially what your claim is.

You have similar documents for defense, and in some cases if you are the defendant and you have a counter claim against the plaintiff then you can complete a document called Defendant’s Claim, and then and then have it issued and served on that on the plaintiff. And similarly you may have cross claims and what not. It gets a bit complicated depending upon what your position is, who are the parties that need to be involved in this. But these documents, the basic documents, which provide your story, or the defendant’s story, or the plaintiff’s story, are called pleadings. The pleadings are the first step, they need to be prepared and served on all parties that are involved.

Now witness list is something that you need to serve and file. This needs to be prepared 14 days before the Settlement Conference, and if you have any additional documents in Small Claims procedure unlike Superior Court, you provide your evidence at the outset of the commencement of your claim. So when you are preparing your claim – and we’ll talk about it in a separate lecture – you actually prepare all of the evidence, documentary evidence that you have in your possession, you provide copies of that with the claim. So those documents are already provided, your entire case is actually in your claim. And similarly the defense provides all the copies of documents that they will rely on. But before you go to a Settlement Conference, if you discover that there are additional documents that are relevant, then you must serve those documents 14 days before trial. And then if you have witnesses for your case, if you are the plaintiff and you are the only person who was a witness, then your name goes in the witness list. If you have additional witnesses that you will bring to trial then you must provide those witnesses’ names in that witness list. And there is a form for the witness list, it is available again online you can download it and fill out that witness list information in there.

Okay we talked about documents, additional documents and so you must understand that the document has a very broad, very expansive definition in the rules. We have talked about it in the Rules of Civil Procedure and I want to show you a similar definition here in the Rules of Small Claims Court. I Google it and I opened “Rules of Small Claims Court.” If you scroll down to Section 1.02 Sub 1 you will find a definition of Document: “Document includes data and information in electronic form,” so it’s a very broad definition and then it goes on to explain what is electronic. And that includes “created, recorded, transmitted, or stored in digital form or in other intangible form by electronic magnetic or optical means or by any other means that has capability of creation, recording, transmission or storage similar to those means and electronically has corresponding meaning.” So essentially anything that exists in any form tangible intangible that can be produced is considered a document. Photos, text messages, emails, you know Word documents, P.D.F. documents, video recordings, audio recordings, all of those are documents. Sometimes even the data about the document may become relevant too, because when let’s say a word document is created it has a digital imprint when the document was created, who created it that sort of information and that’s called meta data, and that may be relevant in some cases too, so all of that needs to be produced.

So you want to make sure that all relevant documents that you are supporting to plead your case must be provided to the other side, and must be filed with the court so that you can fight your case.

Once the pleadings have been completed the court office automatically schedules what’s called a Settlement Conference. What you want to understand is the name implies Settlement Conference meaning that it is an opportunity to see if the matter can be settled. The Settlement Conference is arranged before a deputy judge. These deputy judges are the same judges who preside trials, so they have expertise in reviewing your matter, but remember that the deputy judge who will be presiding, who will be sitting in a settlement conference will not be the person who will take your case at trial. There are always two different people and the reason behind this is that at the Settlement Conference the court expects you to talk openly, confidentially, and see that the matter can settle. And therefore the judge who is sitting at the Settlement Conference may be privy to information that he shouldn’t know at trial because that may impact his judgment. So deputy judges at Settlement Conference are always different, but they will be presiding other trials in other matters so their expertise is the same.

Usually the Settlement Conference is scheduled for about 45 minutes so you can imagine that in 45 minutes you don’t have much time to discuss, you know, the merits of your case, you briefly talk about it. But then the essential goal is to see if you can find common grounds to resolve this matter, and the common saying that goes in the legal world is that if both parties walk out of the Settlement Conference unhappy, then the matter is settled properly because both have made compromises.

Settlement Conference is Without Prejudice. What that means is you can speak freely, whatever you say at Settlement Conference cannot be used against you at trial, and the same thing applies to the other side that if they share some information or state something that you know that is confidential then you cannot use that at trial against them. If the matter does not settle the deputy judge narrows down the issues so, what are the issues for trial? He or she may make a summary of those issues after discussing with you and all the parties, and then the deputy judge will ask about number of witnesses. You know the witness list is there by that time, so the deputy judge will determine what is the appropriate trial length, and he will mark it down in the endorsements. And on that basis when you schedule for trial the court office will schedule a trial for that length.

If the matter does not settle a Settlement Conference, then if you are the plaintiff then you will have to fill out the form that is required to schedule the trial. And there is a fee that you have to provide, so you provide that fee, you schedule the trial, and once you have submitted that document only then the court office will schedule a trial based on the number of days that are appropriate for your case. And at trial the trial will be presided by a deputy judge, who will review all the facts, who will listen to your evidence, your witnesses and then make a determination whether your position is the correct one or not. So that’s sort of the overall process of Small Claims Court. The process has been designed generally so that people can plead their cases without the need for a counsel or a paralegal, these are for matters $25,000 or less and so they’re supposed to be straightforward matters, but the procedural issues get sometimes complicated and if you end up in that situation that you may want to consult a lawyer or a paralegal just to make sure that you’re on the right track.

You want to make sure that you read the rules, read them cover to cover so that you can understand sometimes circumstances arise that you were not anticipating but if you have read the rules then you will be able to deal with those at that time. Make sure that you understand that there are forms for each step and so whatever steps you have to take look out for the forms, fill them out properly and then and then submit and serve them. Remember that a settlement can occur at any time from the time that you have issued the claim or you’ve filed a defense, you can always talk to the opposing side and figure out if the matter can be settled. It can be settled one minute before trial, it can be settled during trial, it can be settled before the court has issued its judgment. So there are great opportunities to settle and you should always explore settlement opportunities because the costs of taking a matter, even in Small Claims Court, could be much higher. So you want to make sure that at the overall process is worth your time and effort.

Hopefully this gives us a sense of the basic steps of Small Claims Court. We’ll keep building on it in our future courses, and if you have any comments please feel free to share those with us, and I look forward to seeing you in the next lecture thank you.

Sharing Personal Medical Information – Employee’s Rights and Obligations [video]

Tuesday, December 26th, 2017

What are the circumstances in which the employee is required to share personal medical information with the employer? What is the extent of the sharing of personal medical information? These basic concepts are addressed in this lecture.

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

Show Notes:

N/A

Lecture Slides:

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 Mustaq from You Counsel. Today, we’ll talk about some of the circumstances in which you may be required to share your medical information with your employer if you’re an employee, or if you are an employer what are the circumstances in which you can ask your employees to disclose their personal medical information, and what is the extent of that sharing?

We’ll 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 paralegal.

We’ll begin with the key principle and will use this key principle so that it may be easy for you to remember the key concepts of this lecture. And what I want you to sort of carry, and it’s said in the loose terms, but the employer does not have a right to the diagnosis, but may have a potential right to the prognosis. And we’ll talk about these terms but I think it’s generally easy to remember that no right to diagnosis, and maybe some right to prognosis of your medical circumstances.

So we’ll discuss you know what your privacy rights are with respect to your personal medical information. We’ll talk about how the diagnosis and prognosis the terms I’ve used, how do they relate to the sharing of personal medical information. So fundamentally what you want to remember is that your medical information is private and confidential, you are by default not required to share your personal medical information with anyone else. But there may be circumstances in which your personal medical circumstances may intersect with your employment duties. They may have an impact on how you can perform your duties, when you can perform your duties, and to what extent. And that’s a situation where in that intersection gives rise to certain rights that employer may have, to obtain certain medical information to manage its own business.

So, employer’s rights to your medical information are limited and they’re limited to the extent that the employer needs to manage its workforce, that’s an employer’s fundamental right, and the employer has a right to manage its own business. So in that context if you come to the employer and say that your performance of duties is limited because of certain medical circumstances, the employer has a right to understand what is the impact of that medical situation on its business so that they can properly get their business you know continued and have the duties performed. So I can give you an example, let’s say if you were a factory worker and your job, or one of your jobs, was to lift items and put them on shelves. And let’s say you end up having a back injury which limits you to lift the items, for instance if the doctor says that you should not be lifting any items that are heavier than 20 pounds, there may be additional restrictions that you may have to sit every so often, every hour or so you may have to lie down for certain time, or you may have to use special chairs or a special table while you perform your duties. So all of these things, all of these limitations, may have an impact on your duties. And in that context the employer has a right to understand what is the impact.

So, one example is the employer has a right to know that from today onwards you are not able to lift anything that is more than 20 pounds, and if there are items that are heavier, then the employer has to figure out who in the workforce will be able to do that task if not you. And if the employer needs to hire somebody temporarily or full time then they’ll have to do that in order to accommodate your circumstances. The employer also needs to know whether the extent of this limitation is temporary or permanent, is it going to last only for a few weeks or is it something that you can never do again. The employer also needs to understand what kind of breaks you need to take so that if there is additional work that needs to be completed then they have to manage all of that. So those are some of the circumstances in which the employer has a right to understand what is the impact of your medical circumstances so it’s what can manage its own business.

With respect to the employer’s duty to accommodate we have a separate lecture on that and you should review that if you’re not clear about what are your rights and obligations with respect to accommodation. So as I said there are limited circumstances in which you are required to provide your medical information. Now as I said there’s a difference between diagnosis and prognosis, so the employer does not have a right to say, “what is it that is causing you not to perform your duties?” So you know the nature of illness, the exact diagnosis, is something that you are not required to disclose and you shouldn’t disclose. What the employer needs to know is what are the limitations so that they can manage its own business.

Now, you also want to keep in mind that when you share that information, even that portion of medical information that you are sharing, the sharing is limited. It is not given out to the entire company, it is shared with H.R. and depending upon the nature of limitations it may or may not be shared with your manager. So in some circumstances it may be appropriate to share with your managers because the manager has to get the job done and so manager has to have some understanding of those limitations, but the sharing of that information is not shared with your colleagues, it’s not shared with anyone else, essentially it’s to the employer to their H.R. department so that they can understand how to rearrange their resources and get the work done while you’re not able to do that job or you’re not able to fully do that job.

So, what you want to remember in this process is that this exchange of information generally becomes a dialogue between you, the employee, and the employer, and how it’s done is that let’s say there is a medical circumstances that gives rise to some limitation, you get your doctor’s note saying that Employee So and So is not able to lift certain items above 20 pounds, and then that letter goes to the employer and then the employer may have some additional questions right. So what is the length of this restriction, are you able to lift anything at all, what if we change your duties to something else? The employer is trying to think about how to manage its work and so they may have additional questions, so they’ll come back to you with those additional questions and then you obtain the response to those questions from your physicians or if you have an understanding yourself then you respond to that. And so in this dialogue at some point there is clarity to the employer that how is your medical circumstance impacting its business, and then in that limited context the information is shared so the employer can manage its business.

Now, there is something that is not a topic for today but I wanted to mention it as call Independent Medical Examination. In some circumstances the employer may ask you to go to another doctor, another physician for an Independent Medical Examination and this is sort of a way for the employer to confirm that you have the limitations or restrictions that you are claiming that you have and also get a better understanding of how the those limitations impact its work. Independent Medical Examination sometimes is allowed, sometimes it’s not, and so it’s a separate topic we’ll cover it in a separate lecture.

Hopefully, you now have at least an understanding of what are your rights as an employee with respect to your medical circumstances, when they impact your employment. Please share with us your comments and questions and we’ll be happy to address those and thank you for watching, we’ll see you in the next lecture.

Reply in a Civil Action in Ontario – Basics for Beginners [video]

Tuesday, December 26th, 2017

What is a Reply in a civil action? When is it necessary? what are the circumstances when you serve and file a reply and, how to draft a Reply? These basic questions are answered in this video which is designed for people with no legal background.

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

Show Notes:

N/A

Lecture Slides:

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 the last step in a pleading, which is called a reply in a civil action in the Superior Court of Justice in Ontario. And as we have said in the previous lectures the concepts that we’re sharing with respect to the pleadings meaning the claim, the defense, the reply are very, very basic this is very broad overview of pleadings so you can understand the fundamental concepts. The pleadings when you’re drafting them could become very complex based on your legal issues and factual issues, but all of these lectures are really to give you a broader understanding of what these pleadings are about. And as I mentioned earlier we have lectures on starting a Civil Action in Ontario, some of the basic steps, how do you draft a claim, how do you draft a defense, and now we’re going to talk about how do you draft a reply and what is it that you need to keep in mind.

And we’ll begin with a disclaimer that this course is not legal advice, so if you have any specific questions you must contact a legal professional.

The example that we have used with respect to drafting of the claim and the defense was a very basic one. We took the example that Mary had loaned $100,000 to John. John had refused to pay money back and Mary went to Superior Court of Justice and commenced the court action. So we’ve gone through that process in previous lectures, and in the last lecture we had gone through the process where John had delivered, John had served and filed his Statement of Defense. And again for the purposes of Reply the key legislation you want to keep in mind is the Courts of Justice Act and the Rules of Civil Procedure, they’re both available online and you can Google them and read the relevant rules with respect to Reply.

So what is a Reply? A Reply is a reply to the Statement of Defense. You are replying to certain facts that were stated in the Statement of Defense and so essentially a reply is made by the plaintiff. And once a Reply is made that’s the end of it, and then the defense does not get another shot at replying to the Reply. And if there are things that the defense needs to change in their Statement of Defense then they can do so by amending their Statement of Defense. So there is an opportunity to amend your pleadings whether it’s the Statement of Claim, Statement of Defense, Reply, Counterclaim, or anything else and there are different rules that govern how those amendments are made, but the Reply is really the last step in the pleadings.

We’ll talk about timeline which is always important, we’ll talk about when a reply is needed and we’ll talk whether a reply is must or whether it’s optional and so we’ll discuss those points.

Let’s begin with the timeline which is crucial and will refer to Rule 25.04 Sub 3, let’s see if we can go to that rule, and it talks about the timing of the Reply, so 25.04 Sub 3 is here: “A Reply, if any shall be delivered within 10 days after service of the Statement of Defense, except where the defendant counterclaims, in which case a reply in defense to counterclaim if any shall be delivered within 20 days after service of the Statement of Defense and counterclaim.” So, in simple words, if you receive the Statement of Defense you literally have 10 days to prepare, serve, and file your Reply, and if you have received the counterclaim in addition to the defense then you have 20 days to do so. So 10 days for simple defense and 20 days when the defense also has a counterclaim.

Now when is Reply necessary? Rule 25.08 Sub 1 talks about when a reply is necessary. Let’s scroll down and see exactly what that rule says. Okay, where a Reply is necessary and 25.08 Sub 1, says “a party who intends to prove a version of facts different from that pleaded in the opposite party’s defense shall deliver a reply setting out the different version, unless it has already been pleaded in the claim.” So one of the key things to keep in mind that the defense has stated certain facts and now you want to quote or you want to state a different version of those facts then you can serve a Reply. But it’s important to know that if you have already dealt with those facts in your Statement of Claim, and then defense has just given a different version then you do not go back and then state another version of those facts or repeat the version. This is not an opportunity to repeat or deal with the facts that you have already dealt with. This is dealing with the facts that are newer and you want to say a different story.

We want to keep in mind the language “shall deliver reply”, which is in the rule, right. The rule says that you rely on these facts defense shall deliver, so the word “shall” means that you must. When you read the rules, the rules use the language of “shall” or “may.” So “may” when the word “may” is use it’s optional. When the word “shall” is used that’s mandatory. So you have to, if you want to rely on a different version of facts than what defense has said, you “shall” deliver a reply, you must deliver a reply and then use those facts.

Okay, another example when the reply is necessary Rule 25.08 Sub 2; let’s see what does that rule say. “The party who intends to reply in response to a defense on any matter that might, if not specifically pleaded, take the opposite party by surprise or raise an issue that has not been raised by previous pleading shall deliver a reply setting out the matter subject to sub rule so and so.” So what is this rule mean? That if you have now new facts, so the defense stated certain facts and then that gave rise to new facts, and if you don’t put them in reply and when your at trial and you bring those facts at trial, that will be surprising to the other side, then you “shall” – you must – bring those facts in your reply. And the second component that you want to understand is that if there are new issues because of what the defense has said in their defense, then you must bring a reply. So what is it that you want to understand broadly with respect to the pleadings? I had said in the first lecture that pleadings is really your story, this is your story where you’re telling the court why you need certain remedies that you’re asking. And the story has to be complete, whatever you have stated in the pleading, that’s all you’re relying on. So if there are facts that are not in the pleading and you want to rely on those facts you won’t be able to unless you have put them in your pleadings. So that’s why the opportunity to tell the complete story is in the pleadings, and for some reason if you were not able to tell the entire story or you realize facts later on you do have an opportunity to amend your pleadings, there is a mechanism to do that all the way up to trial and there are different rules for that and we’ll cover those later. But what you want to understand is that the concept of these pleadings is that nobody is surprised by the facts that the other side is alleging, there are no surprises. Each side, either you’re a plaintiff or the defendant, must know exactly what facts the other side is relying on, so that you can properly plead your case, so that’s the idea.

Okay and again remember the language of “shall deliver” so it’s mandatory. You must, if you are relying on new facts or you are dealing with new issues that are not already dealt with in your pleadings in your claim, then you shall, you must deliver a Reply.

Rule 25.08 Sub 3, “a party shall not deliver a Reply except where required to do so by sub rule (1) or (2).” So what is this rule saying? That look you just cannot come back and then put anything in the Reply just because you feel like you want to respond to the Statement of Defense no you cannot. So there are only two specific scenarios, which are in 25.08 Sub 1 and Sub 2, those are the only two scenarios where you are allowed to file a Reply or serve a Reply, and you must serve and file a Reply. But outside of that, you must not serve a Reply, so that’s important to keep in mind.

So what happens if you do not serve a Reply, and in many, many, many cases there is no reply, and Rule 25.08 Sub 4 deals with that and let’s look at that: “A party who does not deliver a reply within the prescribed time shall be deemed to deny the allegations of facts made in the defense of the opposite party.” So this is this is an important point to know, when you don’t serve a reply then that’s an automatic denial from your side that whatever is being said in the Statement of Defense you don’t agree with, so it’s a deemed denial, you don’t need to serve a Reply to say I don’t agree with the Statement of Defense and that’s why the specific rule is there, to make sure that you serve a Reply when it’s necessary and you don’t serve a Reply when it’s not necessary, and get the benefit of not serving a Reply as a deemed denial.

What are the steps to file a Reply? Obviously the first step is download the form, we have shown in previous lectures how do you download it, it’s available online. You draft a reply, you write your story down, you serve it on the defendant, you prepare your Affidavit of Service, print two copies and then file it in a court office and there’s no fee for filing a Reply.

Again a Reply is an important document as I said, it’s part of your pleadings, your entire story has to be covered in Reply. So its purpose is that you respond to the Statement of Defense and any new facts or any new issues that you want to deal with you do that, and the Reply completes your story.

Now the Rules of Pleadings, drafting of pleadings is the same for Claim, for Defense, and for Reply and we have covered those I’ll briefly go over these. You plead facts not evidence, your statements should be concise, you only plead facts that are relevant, you only plead facts that are material, and each allegation should be in a separate paragraph and those paragraphs must be consecutively numbered.

Now there’s one important part that I want you to remember and you I want to be very clear about it. Remember I said that 25.08 Sub 4 says that if you do not file a Reply it’s a deemed denial of the Statement of Defense; it is assumed that you are not agreeing to whatever statement is stated in the Statement of Defense. But when you do file a Reply then that deemed denial is gone. So what you must do is that if there are facts in the Statement of Defense that you don’t agree with you must state so in your Reply. And my common practice is that I start off my Reply by stating that the plaintiffs denies each and every allegation raised in the Statement of Defense, just to cover myself off, because I don’t want to miss out on a specific fact and I have not dealt with that fact in a Reply and then I expose myself to a sort of an agreement of that fact in the Statement of Defense. So I think it’s important to know that the deemed denial applies only when you have not served a Reply. When you’re serving your Reply then you want to deal with every single fact in the Statement of Defense even though you are raising your new facts or you’re providing a different version, you must say that “I disagree with paragraphs 1 to 27 or 1 to 5” or whatever paragraphs, but you must make sure that you have that, so keep that point in mind.

Okay so we’ve covered the concept of Reply, let me take you to the example that we’ve been using so that we can apply what we have learned a bit, and let’s start by looking at the Statement of Claim so that you can get a sense of when the Reply is needed and what are we doing in this case. So if you go through the Statement of Claim in the claim portion in the claim video that we have gone through you will notice that in that claim Mary had simply stated that John had, they’re childhood friends, John had borrowed money $100,000 he had promised that would return and then he has not returned it so he is liable for $1000,000. But when you read the defense you will notice that John has now raised some new facts that Mary had not dealt with in her Statement of Claim. So for instance he says that not only that Mary and he are friends but their parents were also, their fathers were also childhood friends, so Kozner and Smith’s fathers were also childhood friends, that’s an interesting fact. And then John goes on to say that 20 years ago his father had helped Mary’s father when he was going through financial difficulties and when John was going through financial difficulties in the near past then Mary agreed to help him out and this was the reason why this money was given as a gift. And everything was going smoothly until the families had a real breakdown in their relationship and it started off with some children fighting over hockey games and stuff like that. So essentially what you see is in John’s Statement of Defense he has now quoted new facts, which were not covered by Mary in her Statement of Claim, and then it’s important for Mary to deal with those. Is John telling the truth, is he correct in saying that their parents, their fathers, were childhood friends, is he correct in saying that John’s father had actually helped out Mary’s father 20 years ago? So all of these facts are important because when a judge is ruling, the judge is going to determine ‘A’ whether those facts are correct or not, and then decide whether this payment of $100,000 was indeed a loan or was it a gift? And so Mary in her Reply will be or “shall” if she wants to portray a version of facts different than what John is stating must serve her Reply and then tell her side of the story, and her story could be, you know, could have more factual information that is not covered in John’s Statement of Defense. So that’s a scenario where a reply must be served because you are dealing with as a plaintiff new facts, which were not covered in your Statement of Claim.

Okay, so we’ve covered some of the rules you can always look at Rules of Civil Procedure, Rule 25 to 29 deals with pleadings, Rule 26 deals with amendments and we’ll cover that in a separate lecture. And then the conclusion of all of this is that pleadings are important you must have a basic understanding of the underlying legal principles because your facts are going to support or are required to support the legal conclusions that you want the court to draw and so you frame your facts accordingly. And if you’re not clear about the legal underpinnings of what you are arguing in the pleadings, then you must go seek advice from a lawyer, get a consultation, ask the lawyer to review your pleadings or get some coaching, but make sure that everything that you put in the pleading is properly in there, it’s covered, you’re not missing out on either any factual issues or legal issues that you need to deal with.

Hopefully, these lectures give you a good understanding of what pleadings are about, Defense, Claim, Reply. And we’ll keep building on this information. Please send us an email or put comments in YouTube so we can address some of the questions that arise in your mind and hopefully we’ll continue to benefit from these lectures. Thank you for watching.

Fresh Consideration and Enforceability of Contracts – Basics [video]

Tuesday, December 26th, 2017

Fresh consideration in contracts is an important topic which is often ignored or misunderstood. It applies to a variety of contractual relations and a basic understanding will help a long way in keeping a track of your rights and obligations under a 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:

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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 the enforceability of contracts when there is Fresh Consideration. It’s a very specific topic, it’s a niche topic in Contracts Law but it’s a very important one. Number one, the applicability of the Fresh Consideration is a significant issue with respect to the contract’s enforceability when there are changes to the contract, amendment, revisions, second contract, so on and so forth. And secondly this happens all the time, you will be facing the situation, you know, a number of times in your life when the contracts will be changed, especially with respect to your employment contracts. Whether you are an employee or you are an employer, there may be situations where your contracts may be revised, may be changed, may be amended, and you must understand what is the relevance of Fresh Consideration with respect to the enforceability of that contract. So we’ll explain that in the most simple terms possible so at least you get an understanding of what this issue is about, what is Fresh Consideration and why is it important so let’s get into it.

And we’ll begin 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.

Okay, so there is a fundamental principle that I want you to carry from this lecture and it goes as follows, changes to Fundamental Terms of a contract will be unenforceable absent Fresh Consideration. So if there are changes and I’ve underlined Fundamental Terms and Fresh Considerations, so I’ll talk about both of these things. But if there are changes being made to a contract any contract and those changes are fundamental, are basic changes in that contract, Fundamental Terms is a specific term in contract law which means that the changes are significant with respect to that contract. So if those changes are made there has to be a Fresh Consideration and if there is no Fresh Consideration, those changes, that new contract will not be enforceable, so they have no value.

Okay so what is consideration, what is Fresh Consideration? I would like you to check out our other lecture, which talks about the contract basics and we explain that in more detail. But essentially a “consideration” is the exchange of value between two parties. So in that lecture we explained that you have a legally binding contract when there is an offer, there’s the acceptance of that offer, and there is an exchange of value between parties, which is called consideration. What you want to understand is that it’s an exchange, so that means both parties must get some value out of that contract that is what makes the contract binding. So if only one party is getting a benefit and the other side is not getting a benefit that’s not a contract, that may be considered a gift but it’s not a contract. So consideration is the value that flows from one party to another and the other party to the first party. So it has to be an exchange, there has to be some value. And a Fresh Consideration then is that if you are making any changes to your existing contract there has to be fresh value, not the value that was in the previous contract, but there has to be something new that is being exchanged between parties, so that’s Fresh Consideration.

Now all of this will be easier to understand if we give you an example, so we picked the employment law situation, which is most common and will help you understand this Fresh Consideration and the changes in that context.

So let’s say you have an employment contract, either you’re an employer or an employee, but there’s an employment contract. Let’s say you are an employee and you go to an interview, they like you, they send you an email or a text message saying, “listen, we would like to offer you this position as the production manager and your salary is $100,000, you’ll get benefits, please confirm whether you accept this.” It could be in any form – phone call, email, text message, Instagram, Twitter, whatever the mode of communication is – that’s an offer, and if you say “yes” then you have accepted that offer, and that’s your employment contract. Essentially what you have agreed to is salary, benefits, and what you’re going to work and that’s a complete contract. Let’s say that in that basic contract there was no terminations clause, the employer did not say “if we let you go you will be entitled to ‘X’ amount of money or no money or whatever the clause is.” there was no clause at all. All it talked about was salary and benefits and that’s it. So very, very basic concept of a contract, so you got that offer you accepted it, now you have a binding contract.

Now you go to work, the next day, the next week you start working, you show up there and H.R. calls you and says, “by the way you have to do some paperwork, come on in” and then they give you this paperwork which also contains an employment contract, but it is different than what you had received in that email or in text messages. And no you look at it and it has maybe three pages maybe four pages, it has all kinds of clauses like Restrictive Covenants, Non-Solicitation, Non-Competition, so let’s leave that aside for a second, and assume that there is a clause for termination now. And the clause says, “if we let you go without cause your rights are limited to what are in Employment Standards Act.” E.S.A. is Employment Standards Act, so your rights are limited. You have no idea what this says but you do notice that there is a change, or at least in addition of the terms that were previously offered to you.

Now this in law is a new contract because this specific clause, the termination clause is actually a fundamental clause. What happens to you on termination was something that you had not negotiated, was not discussed with you, and was not part of the employment offer that was made to you. You have already started working, you showed up on work that day, so that means you have started to perform your side of the contract. And now the employer says, “by the way here’s a little bit of paperwork you have to do.” and you realize that it’s not just paperwork but these are fundamental changes to your initial contract.

Now, that fundamental change: what are the implications? Number one, this is a new contract, this is not the old contract because the terminations clause did not exist in the old contract, and so this is really a new contract, this is a revised contract, this is a second contract, whatever you want to call it. And you notice that there’s no Fresh Consideration in this contract.

So what will be the Fresh Consideration? Now the employer is asking you in that contract that not only that we want you to work $100,000 and have these benefits, but by the way we want you to agree that you will have much lesser rights or different rights on termination than you could have gotten based on your initial contract because there was no termination clause or rights or differences. So what is the employer asking? The employer is asking another value from you, right? Your agreement to a lesser right or a different right on termination is the consideration that is flowing from you to the employer, now what is flowing back to you? Nothing.

The employer is not saying that by the way for this particular consideration we offer you another $5,000 in salary or we offer you signup bonus or something. If there is no Fresh Consideration then this new contract is unenforceable. And why this is important is because it happens all the time, sometimes because the H.R. people don’t understand this, sometimes employers don’t understand this, sometimes employees don’t understand this. That the contract is the one that you have agreed to initially and if there are any changes later on after that initial contract has been accepted, then there has to be a Fresh Consideration. If there’s no Fresh Consideration that new contract is not enforceable. So that’s sort of one scenario where you show up at work and then you are asked to accept or sign the documents for the new contract.

And in other situations you are already working for an employer for let’s say two years, three years, four years, five years, and then employer comes back and says, “oh by the way we only had a contract on email, now we’re sort of organizing and making things better so here is like a proper contract that we want you to sign. Nothing has changed for you, you have the same position, you have the same salary, we’re not changing anything except that you sign this contract.” And in that contract there are all these clauses that did not exist in the prior contract, they are absolutely unenforceable, because there is no Fresh Consideration. If an employer has to change the terms of your employment contract during your employment, then they have to offer you some Fresh Consideration, whether it’s respect to termination or other matters.

Let’s say you were a production manager, you were hired as a production manager and now the employer wants you to become, you know, a marketing manager. Which is something that you may not have any expertise in, you may not have any background or it’s fundamentally different than what you used to do. That is a fundamental change in the terms of an employment contract and that also gives rise to requirement of Fresh Consideration, and if there’s no Fresh Consideration than that contract will not be enforceable. So these are sort of some of the things that you want to keep in mind.

What is it that you want to carry from this lecture? At least you want to get a basic understanding of what is a Fresh Consideration, if you have more than one contract or being asked to sign more than one contract, then you want to be alert to this issue and you can raise it with your lawyer, or research it a bit more so you can get a better understanding of whether that contract is enforceable or not.

So with respect to an employer, I always advise my corporate clients that they must provide full terms of the contract in the initial contract. There’s no thing that the offer is made by an email or a phone call, the employee has accepted it, and when the employee starts working the employer puts a larger contract on the table and asked the employee to sign. No absolutely not. The employer should ensure that employee has accepted an employment contract before starting to work. Once they’ve started working, they have started working on a contract that they had agreed to by that time, so anything that’s offered to them later is a fresh contract, requires Fresh Consideration and will be unenforceable. So you must make sure as an employer that you have your contacts in place properly, and if you’re asking employees to sign new contracts there must be Fresh Consideration.

For employees you want to keep in mind that if you have multiple contracts in that employment context, you want to make sure that you review them carefully. If you need to see a lawyer, go see a lawyer, but you want to understand that those contracts, which lack any Fresh Consideration will not be enforceable. So hopefully this gives you a good understanding of what is the role of Fresh Consideration with respect to changes in employment and contracts, any contracts. And if you have any comments any questions please contact us and we’ll be happy to speak more about this topic. Thank you for watching.

Entitlement to Overtime Pay in Investing Banking Sector – Basic Legal Principles [video]

Tuesday, December 26th, 2017

This lecture deals specifically with the investment banking sector and the rights of non-managerial employees to overtime pay in this sector.

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

Show Notes:

N/A

Lecture Slides:

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 overtime pay with respect to the Investment Banking sector. Over the course of the last few years, we have had a large number of employees from Investment Banking sectors who approached us for different Employment Law matters, and we realized that almost all of them had no understanding of their overtime pay rights in their sector. So, we decided to present this lecture so that other employees in the Investment Banking sector can understand this area of law.

We’ll 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.

When we’re talking about overtime pay in Investment Banking sectors the kind of employees we’re talking about are Equity Research Associates, Equity Research Analysts, Investment Banking Analysts or any other term, similar term that is used for these employees, those are sort of the subject matter of today’s discussion.

But keep in mind that the principles we’re talking about for overtime pay are equally applicable. We actually have another lecture on overtime pay in general, which talks about who are people who are entitled to overtime pay and what kind of employees are exempt for overtime pay. So if you want to understand the overtime pay area of law more broadly please check our other lecture on overtime pay.

So, is an Equity Research Associate or an Analyst entitled to overtime pay? The answer is absolutely yes. And this entitlement arises from Employment Standards Act 2000, which is a Provincial Legislation. So if your employer, your Investment Bank, is provincially regulated then the legislation that governs your employment relationship is Employment Standards Act 2000 and this legislation says that if you work for more than 44 hours in a week then you are entitled to time and a half or the additional hours of the time that you work per week. Similarly, if you work for a federally regulated employer then the Canada Labor Code would apply, and then Canada Labor Code has hours for overtime, I believe it’s 40 per week so any time if you work for more than 40 hour you may be entitled to overtime pay. And so these legislations are quite detailed you can review those and they’re also covered in our other lecture, but the idea is that you are entitled to overtime pay unless you fall under some of the exemptions.

So everybody’s entitled to overtime pay unless an exemption applies, and you can look at those exemptions. But we’re covering specifically the Investment Banking sector so I will briefly tell you whether you are entitled to or not and what are the things to look for.

One of the issues that we always deal with our clients is somehow our clients believe that if they earn a lot of money $200,000, $300,000 or so that you may disentitle them to overtime pay. What I want you to understand is that whether you earned $30,000 per year or $150,000 or more, in law it makes no difference. The law, the statute, does not say that overtime pay is limited to people who earn X amount of dollars. So your income level or your bonus entitlements have no bearing on your right to overtime pay.

What does matter is whether you are an employee in a supervisory capacity or not. If you are a supervisory employee, meaning that you have people reporting to you, you have some role in hiring and firing of employees, you write evaluation reports, you have some control over other employees who may be considered your subordinates, then in that situation you will fall under the supervisory exemption or the managerial exemption for overtime pay, and you will not be entitled to overtime pay. But in our experience most of the Equity Research Associates or Analysts have no one reporting to them, and they are essentially on their own, or reporting to their manager or supervisor for their work. And they work long hours, and essentially under the legislation they’re entitled to overtime pay.

When you understand the basic part that you are indeed entitled to overtime pay you also must understand that if you seek in a court the payment of unpaid overtime, the burden lies on you the claimant to prove that you have indeed worked overtime. And so you must have some records to prove that you have worked overtime hours, and then at times the court asks you to prove on a week by week basis what hours you had actually worked.

So, how do you get the proof of overtime pay or overtime hours? There are different ways that you can figure that out. Obviously the most simple way is that you have a spreadsheet or some document where you have documented all the hours that you have worked and you keep those as record and that will be your contemporaneous record that you can you can show to the court to establish that you have worked overtime hours. But if you are going backwards, having now realized that you are entitled to overtime pay and had not maintained any records, one way that you can figure out what hours you have worked is really by computer log-ins. These could be local log-ins to your computer or to your company’s intranet or your Citrix logon and that information is maintained in the security system security logs of that company, and so you are entitled to obtain that information in litigation and the employer is required to produce that information, so that’s one source of information. That can give a very good sense of what were the hours that this particular employee had worked.

Another piece of information comes from the access cards. These are the scan cards that you used to enter into your office building or your office and they can also either confirm the computer login information or add some more value to it. Obviously the access cards will not provide complete information because oftentimes employees are not working from their office, they may be working from home or elsewhere, so access cards will not provide complete information, but at least they can provide or substantiate information of your claim about the hours that you have worked.

Also that you can look towards your email correspondence or other electronic transactions that you may have done. You know the emails that you may have sent at the late hours or early hours of the morning or late hours in the evening, they have time stamps so they can prove that you were actually working at that time. And with the present social media you know all the activities that one person is performing in different places are somehow being logged, and so I think increasingly in the coming years it will be possible to actually accurately determine what a person was doing at what time and what kind of activity. So it’s not something that’s that is too complicated, it is spread over a different number of, you know, sources of electronic information, but it can be obtained. And there could be employee logs that you may have maintained or the company may have maintain, sometimes especially in large accounting firms we know that they have a time capturing mechanism, electronic mechanism by which they capture each employee’s time at work. And so that information can be obtained if your company uses that information.

What you want to understand is that under the Employment Standards Act the burden is on the employer to make sure that they keep all those records for overtime hours. But when you are an Investment Banking Associate or Analyst there’s a basic challenge between what you are saying and what your employer’s position is. An employer may take the position that you’re not entitled to overtime pay and therefore they had no reason to log your overtime hours. So it may come down to you to make sure that you have some evidence to substantiate that you had indeed worked long hours.

Another factor that is helpful is obviously witnesses, you can bring in witnesses who have worked with the you who can substantiate your claim that you had worked long hours, and similarly industry practices are also relevant. I mean it is commonly known that employees who work in Investment Banking sectors work significantly long hours, this is not a surprise, it shouldn’t come as a surprise to the decision makers or to anybody who is dealing with this matter.

What about the time period? If you if you figure out or you learn that you’re entitled to overtime pay how far can you go back? If you are bringing an action in the court then you can go as far back as two years, and if you are bringing a complaint under Employment Standards Act to the Ministry of Labor for unpaid overtime hours then the end time period is much less, I believe it’s a maximum of six months from the day that you file your complaint or maybe even less. So your better approach in with respect to seeking unpaid overtime is commencing a court action, which is two years.

And the other part that you want to keep in mind is the Principle of Discoverability and we actually had effectively argued this principle. Principle of Discoverability essentially takes away this two years limitation. So you can go as far back as 15 years or 20 years of unpaid overtime if you can argue this Discoverability principle. And I’ll tell you briefly what it is by giving an example.

So, let’s say if you have a car accident, and after the accident you go and get some medical tests done and the determination is that you have no injuries arising from that accident, you’re absolutely fine. And then four years down the line you have some sort of medical problem, and when that is investigated through medical examinations it is revealed that the source of that problem was really the accident that took place four years ago. Now you had done everything reasonable post the accident to figure out whether there was some problem caused by the accident and you found nothing, and it was not until four years later that you found that the accident did indeed cause you some problems. So in that situation what the court will consider is that the discoverability of that problem was when you could objectively find out when the problem arose, which was four years after the accident. So from that time onward you’ll have two years to file your claim.

So, how does that apply in overtime situations? Until today you may not have known that you are entitled to overtime pay, and you have worked for a company or companies for the last 10 years, and you believe that, you know, you fit in the criteria that you are entitled to overtime pay and it is only today that you have learnt it was the employer’s burden to make sure that they document overtime hours, they give you overtime pay. They failed to meet those obligations, you discovered it today, and so as of today, from today onwards, you have two years to sue, to bring a court action against all of those employers for the past 10 years, 12 years or whatever. And we were able to make this argument in a class action lawsuit against a very large company and that issue was never tested in court but it got resolved through settlement of that matter.

So, keep the time period in mind, keep an understanding of the fact that you may be entitled to overtime pay and make sure that you keep records, these records could be as simple as spreadsheets that you have maintained contemporaneously while you are working with that employer, but keeping those records is important.

So, what I want you to carry from this lecture essentially is that do not assume that you’re not entitled to overtime pay. Also keep in mind that if you are entitled to overtime pay it may have a significant impact on your severance payment. How? Because severance payment is calculated on the basis of your total income and if you were entitled to overtime pay for the past periods then your total income was actually higher, and if your total income was higher your severance payment correspondingly should be higher too.

So, always keep records, you know document, document, document, at this point cannot be emphasized enough because you would need some evidence to prove that you had worked long hours and if you are in doubt always consult an employment lawyer to make sure that you know what your rights are.

Hopefully, this was helpful in giving you some understanding of your rights for overtime pay. Please provide us with your comments, any more questions, any specific issues with respect to these legal matters that you have in mind, please let us know, and we’ll be happy to talk about those issues in our future lectures and thank you for watching.

Entitlement of Bonus on Termination of Employment – Basic Legal Principles [video]

Tuesday, December 26th, 2017

Disputes regarding the payment of bonus on termination of employment are common. While the entitlement to bonus can become a complex factual and legal issues, this lecture explains the basic legal principles regarding the bonus entitlements on termination.

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

Show Notes:

N/A

Lecture Slides:

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 payment of bonus on termination. This topic can become very contentious when an employee is terminated, and he or she believes that he or she is entitled to a significant amount of bonus that the employer is withholding, and the dispute can be quite intense and complex. We’ll cover the basic legal principles so you can get an overview of what are the legal concepts that relate to the payment of bonus on termination of employment.

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

What are the common reasons for the denial of bonus? I’ll give you a few here. Number one could be that that the payment of bonus is discretionary and so regardless of whether you are an employee or you’re terminated, you are not entitled to bonus.

Second reason could be that that someone did not meet targets and by someone I mean it could be you the employee who did not meet the targets, and therefore you’re not entitled to bonus. It could be your department that did not meet targets, or it could be the company that did not meet targets, or any one or combination of those could be that reason given for the denial of bonus.

Another reason could be that the company does not provide any pro-rated bonus, so you were not employed for the entire fiscal year or entire calendar year and therefore the company would not give you pro-rated bonus because that’s not their policy.

Or another reason could be that you were not employed on the date when the bonus is paid out. So you may have completely worked for the entire fiscal year, but because you were not employed on the date that the bonuses are paid out, you are not entitled to receipt of the bonus. So we’re going to talk about all of these in a little bit.

Let’s start with basic bonus types: what kinds of bonuses are there? There are essentially two kinds of bonus, one is discretionary, and one is non-discretionary bonus.

What is a discretionary bonus? A discretionary bonus is really a bonus that is at the employer’s discretion. An employer can decide whether somebody, someone, or the entire company, may get bonus in one particular year or may not. So discretionary bonus is not really based on someone’s performance, your performance, department’s performance, or a company’s performance. The company may not do very well that year and yet the company may decide to give bonuses to different people. Or the company may have performed amazingly and may decide not to give out anyone a bonus. So that’s essentially what a discretionary bonus is.

What you want to keep in mind is that when this issue is faced in courts, the courts believe that discretion, even if it is a company’s discretion, the discretion cannot be exercised arbitrarily. So there has to be a good reason for the exercise of the discretion. So giving an example, if you were an employee who was still employed, who was not terminated and you would have gotten the bonus because everybody else was getting the bonus, or you would have gotten the bonus because of your contribution. And the only reason you are not getting the bonus is because you have been terminated from your employment, then that may be a situation where the court may say, “well, it is your discretion, but you’re trying to exercise your discretion arbitrarily, and we’re going to supersede that, we’re going to deny that, because you can’t do that, that’s fundamentally unfair.”

So, that’s sort of the legal principle that you want to keep in mind in discretionary bonuses, and it happens all the time that you have been getting bonuses for the last four or five years, everyone else has been getting bonuses, and just because you were terminated the employer chose not to give you the bonus. So that’s one reason that you want to think about even when your contract says that your bonus is discretionary.

Now non-discretionary bonuses. Non-discussion bonuses are essentially metrics-based, there has to be some formula underneath it. It could be based on employee’s performance, it could be based on your department’s performance, it could be based on company’s performance, or any combination of that. And these non-discretionary bonus formulae could be very complex. I mean it could be as simple as if you achieve $1 million sales, your bonus will be 10% of your salary, it could be as simple as that. Or it could be very complex in terms of your achievements, your department’s achievements, your company’s achievements, and all of that you know thrown into a metric. And so these metrics-based situation varies usually based on the industry. If you’re working in the financial industry they have one way of dealing with this, if you’re working in the legal industry or an accounting firm then they have different, you know, metrics.

I can give an example, especially in legal firms and in accounting firms, because they charge based on the number of hours a lawyer or an accountant worked for a particular year, so the performance bonus, the non-discretionary bonus is based upon the billable hours that a lawyer or an accountant charges for one particular year. So, an example in the law firms is, if a lawyer exceeds $200,000 in billable hours in one particular year then he or she may be entitled to some bonus on additional hours.

Okay, so what about pro-rated bonus? There are few things that you want to keep in mind. One is that whether you were terminated or you resigned. Because when you were terminated that date or the timing of determination is of the employer’s choice, the employer decides when your employment would end. And so it could it is possible for an employer that the end of the year is December 31st, and the employer chooses to terminate your employment on December 24th. And on that basis, the employer makes an argument that because you were not employed until December 31st for the full year, we do not pay a pro-rated bonus and so you’re not entitled to do it. So, if you’re terminated, the court may respond in your favor and say to the employer that you had the power to choose the date of termination and you arbitrarily picked a date which was prior to the completion of the year, and therefore those grounds are not valid. In terms of resignation the opposite may be true, because you are the employee are walking out of the job and leaving the employment, and you are choosing the date, then you may not get your pro-rated bonus because of your choice. So, timing of the termination or the resignation matters, the nature of termination or the resignation matters. But generally speaking what you want to keep in mind is that if you have contributed for a certain period of time for the benefit of an employer, then the general principle is that you should be entitled to that contribution even if it is not for the entire year, because you have already contributed and the company has already benefited from it. So, there is a basic rationale of fairness that you should be entitled to it, but it will depend also on what your contract says.

Now, let’s go to the payout date of bonus. This is something that we see increasingly in a number of employment agreements especially with respect to the financial industry, the accounting industry, the legal industry, and some of the other industries, where the employment contract says that even though our fiscal year completes on December 31st, we pay out bonuses on March 1st and if you, the employee, are not employed on March 1st of the next year you will not get your bonus payout, even though you may be entitled to it. So it’s a tough clause and if you’re an employee you got to be watchful if this clause is in your contract, because that could have a significant impact on your entitlement to bonus. So again, just like the pro-rated bonus both the termination or the resignation matters, and the timing of your termination also matters. Because if you are let go in February and the payout is really March 1st you know is that really fair when you’ve contributed to the success of the company, and you are entitled to the bonus otherwise.

Okay, so in all of these scenarios what you want to keep in mind is that your employment contract is really the most important document. What does your employment contract say about your entitlement to bonus? That’s something that you want to keep in mind. Does it say it’s a discretionary bonus, does it say it’s non-discretionary bonus, is there a formula? And then with respect to employment contract you want to be careful, because there could be legal contractual issues that could be very complex. So even if the employment contract says that the bonus is discretionary, that may not be upheld by the courts depending upon, you know, past or present practices of the employer. So let’s say if you are in the financial sector and you are entitled to a bonus and the assumption is that bonus is really your income, and only that the method of payment is different, then the practice of that industry is that it is as good as income, and just paid differently, then the court may find in your favor and say that the combination of the employment contract language of discretionary payment and the current and past practices of the employer combined may come up with a result that is that you are entitled to bonus and it’s more favorable. So you want to look at your employment contract very carefully. And then at the same time, if it’s a non-discretionary bonus and there’s a formula and metrics then you want to make sure that you understand what that formula is and then you can make your employer accountable for that formula.

So, what is the conclusion, what you want to take away from this is: do not assume whether you are entitled to bonus or not entitled to a bonus. I think that it lies in the language of the contract, it lies in the practices of the employer, and the overall fact that, generally speaking, the court believes that if you contributed to a certain extent to the company and you would have been entitled to a bonus otherwise but for your termination, then the chances are you will get some bonus.

So, second thing you want to keep in mind is when you’re negotiating contracts you want to be careful about the language surrounding the bonus, if it is an important thing for you, if you have negotiated and it’s a big deal for you that you get bonus, then you want to make sure that the language in the contract reflects that, not just the discussions that you had with the company, but the actual wording of the contract reflects that.

You also want to keep in mind that bonus is a very important, very relevant consideration for your severance calculation; it plays a significant role in the calculation of your severance. Because severance is not just based upon your salary, but it’s based upon your total income so you want to keep that in mind. And so hopefully this basic lecture gives you an idea of how the courts think about entitlement to bonus and you can apply this into your circumstances, and then what we’ll do is, we’ll continue to build upon it, we’ll have some specific scenarios where we will take a clause, a bonus clause, from an employment contract and then talk about in more detail how it applies to different circumstances.

If you have any questions or comments please share with us, and thank you for watching, we look forward to seeing you in the next lecture.

Completing and Filing a Human Rights Application in Ontario – Basic Steps [video]

Tuesday, December 26th, 2017

This lecture explains the basic steps regarding the completion of a human rights application in Ontario, its filing and post-filing steps.

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:

To download the application form, click here:
http://www.sjto.gov.on.ca/hrto/forms

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. In our previous lecture on Human Rights we had provided you with an overview of the Human Rights application process in Ontario, today we’ll talk about how do you complete the application form, the Human Rights application form, and once it’s completed what do you do with it, and what happens once you have filed that application form.

We begin 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.

So let’s go through some of the basic steps. Your first step is really to find the application form, download it, complete it, you can actually complete it online and file it online. Or you can download it, complete it, and then send it out. Then we’ll talk about completing the form, I’ll take you to the form, I’ll go over the form briefly to highlight some of the sections and what you should expect to write in those sections. Then we’ll talk about filing of the form with the Human Rights Tribunal of Ontario, and then you get some confirmation that you have actually filed the form. And then we’ll talk about some of the post filing steps so you understand what happens next.

Okay so application form is available online for free. You have to go to Human Rights Tribunal’s website. So let’s go to Google, type in “Human Rights Tribunal forms”, and it will take you to Human Rights Tribunal’s website. Let’s go there and you will see forms and filing, and all kinds of forms are available. You will notice that Human Rights Tribunal has smart forms, which are forms that you can complete online. So let’s say if you want to complete the form online, and then file it directly, then you click here, this is the smart from the application. I generally, my approach is not to use the smart form, I would rather download the form, complete it, make sure that it’s complete in every way and then send that completed form to Human Rights Tribunal. But you have that option and whatever your preference, is you can follow that.

You will notice here all of the tribunal forms are listed here, they’re available for downloading. What I want you to see is this applicant’s guide. If you click on that this is a very detailed guide that gives you good information about when you can file for Human Rights application and what circumstances you shouldn’t, whether your case has jurisdiction in the tribunals or not, so these kind of things are all there, you must read. If you have not filed an application form before, make sure you download the applicant’s guide and you read it.

But the actual application form is Form 1. Let’s click on it and I’ll show you what this form looks like, and then we’ll talk about it in a little bit more detail.

So the first two pages are really a lot of information that some of it we have already covered in our previous topic, other we haven’t. And so we’re going to talk about that form again. I’m going to go in the area where we can talk about how you complete the form. You scroll down, I think it’s about the third page or something, where you start providing information. So the very first section, it’s divided into certain sections, let’s see if I can expand it a bit. The first section is personal contact information, that’s your information, the applicant’s information, you want to put your first name, last name, all the information, your contact information, your address. And what you want to notice further down, what is the best way to send the information to you? And the best way to do that is, if you prefer mail, then Human Rights Tribunal will use mail. If you want email, then you check that box, and if you want fax, then there’s a box for fax. Let me see if I can make this a bit smaller.

Okay, so you complete that information, your information, then you have an option in Section 2 to provide alternative contact information, so if you’re not comfortable receiving all this correspondence from Human Rights Tribunal at your address, then you can have an alternative contact information, you can provide that here. And then finally if you have a representative, a lawyer or a paralegal or legal support center, if any of those organizations are representing you then this action needs to be filled out, and you must authorize that person to represent you. So their information comes in this section and further down their full address, if it’s if the law firm you provide the law firm’s name, if it’s an individual you provide that and this information is filled out.

Next comes the respondent’s information and depending upon how many respondents you have you add all of the respondents in the section. Whether it’s an organization respondent then you provide that information, if it’s an individual check this box and provide the individual respondent’s information. You want to make sure that at this stage you don’t miss out on any respondents, so for instance if it’s a discrimination issue at employment, and you believe that a colleague, or a supervisor, or a superior has discriminated against you then you can bring a complaint, bring an application against that individual, but you should also name the company as one of the respondents too. Because you know a lot of conduct of an employee, the company may be found liable for that conduct, for not ensuring that Human Rights were looked after for you in that organization. So if there are more than one respondent you want to make sure that you list all of those respondents in here. And you can notice here that if there are more respondents to check this box and you will see that you will have space to add more respondents.

Next comes the grounds for discrimination and all of the grounds are listed here from Human Rights Code. Your goal is to check as many boxes as you believe apply. Further down you want to talk about areas of discrimination. There are five areas of discrimination under Human Rights Code, employment, housing, good services and facilities, contracts, membership in a vocational association. So depending upon what area applies to your case you check that box here, and if it has more than one area then you check that box. So you have the option to check more boxes by clicking “yes” here, and then adding more boxes.

Coming down to facts that support your application, this is an important section, you want to make sure that you get it right. Whether the discrimination you’re talking about happened in Ontario, in what city/town, dates of the last event, and date of the last event is important. If it’s a single incident then you put the date of that incident, if it was a series of events that occurred that you believe all contributed to discrimination then you put the last event and its date. And it’s important because for Human Rights application to be heard by the Tribunal you have one year, so the statute of limitations is one year, not two years as it happens in many of the court cases. So it’s one year from the date that the last event occurred. So if there’s a series of events, they may have spanned for two, three, four, five years in some cases, but you are limitation period starts from the last event so that that date is important, so you want to keep that in mind.

And if you have exceeded the one year limitation period then you need to explain why you believe your application should be heard, and the tribunal will then decide whether they want to hear your application or not, or the circumstances justify that the limitations period be waived in your case.

Sections eight and nine deal with actually what happens. Eight is what happened and the nine is the effects on you. What you can do is, and it says, you know, what happened, who was involved, when did it happen, and where it happened. And you can start typing in here, “on such and such date, you know, so and so person discriminated against me.” So you can type in here whatever your contents are, whatever your dispute is, but my suggestion and the way the lawyers most of the lawyers I know do, is that rather than typing in here they actually attach a schedule and then put all of that information in that schedule. So you type in here, “see attached schedule ‘A’” and then you put all the information about what happened in that section. It looks a bit cleaner that’s what I like, because you’re telling a narrative, a story. It looks better if it’s in one document contained separately, and similarly the facts you want to type in here “please see attached schedule ‘A’.” And you put that information in there and that’s fine, the tribunal is okay with that, just you want to make sure that those documents are attached. But if you want to fill out this form and put all the information in here you can do you that too. But you have limited formatting options here so I my recommendation is to do it on a separate document.

Okay scrolling down, you will explain what kind of remedy you’re looking for. First of the monetary compensation you put the total amount here, and then you explain how you got to that number. Is it loss of income, is that pain and suffering, is it injury to your dignity, feelings of self-worth? You know all of those categories are categories for seeking damages so you seek that. Then you can talk about non-monetary remedy, if you want to apology letter or something else, which is not based on money you can indicate that here. And then in the third section you can talk about public interest remedies, meaning you can ask the tribunals to make the respondent to take a Human Rights course or have a Human Rights audit of the workplace. Whatever you believe is an appropriate remedy so that such discrimination does not happen again for other employees or other people, you can you can provide some remedies, you can ask for certain remedies here, and the tribunal will decide whether those remedies are appropriate or not.

Now this section is about mediation. Mediation is optional, if you want to go and attend mediation to see if you can resolve it you check this box, “yes”. If you don’t want to mediation and you want this matter to go straight to the hearing then you don’t need to check this box. Tribunal, at least Tribunal in Ontario, has this common practice that if you have not checked this box and you don’t want the mediation, they will at least contact you and ask you if that’s still the case. Because a lot of times mediation is a helpful step and it may help parties to resolve the issue. So if you check the mediation the tribunal schedules a mediation. One of the Vice-Chairs from the tribunal attends that mediation, it’s all confidential and then he or she will try to help you settle this case. And if it doesn’t settle, then that person will not be the adjudicator for the hearing.

This is an important section: Other Legal Proceedings. If there is a Civil Court Action or Human Rights complaint, or, you know, a Union Complaint, a Grievance Process, any other proceeding that deals with the same or similar subject matter, similar facts, then you need to provide that information here. If it’s a Union Grievance, a claim with another board or tribunal, or a court action or something like that, any legal proceeding if you have commenced, you need to explain that. Because in my previous lecture, as you may have noticed that, you cannot have multiple proceedings with different bodies at the same time. So the tribunal will then decide whether it’s appropriate to proceed with your application or defer your application until the other proceeding has been resolved in any way. So you’ll have to provide all that information here and then you will provide in the next section supporting documents with respect to your application.

So first section is documents that you have, you list the name of the document, the date, why it is important to your application, you briefly explain it. Important documents that the respondents may have, if you have knowledge of that, you list the document’s name, why it is important, and which respondent has that document. Then if any other organization has documents that may be helpful to your case, then you list those documents here. Because at a later stage you can have an order from the Tribunal to compel that organization to produce those documents, because they are relevant to this hearing. You also provide confidential lists of your witnesses if there are any. This witness list at this stage is not shared with the respondents. It’s confidential, it’s for Tribunal’s knowledge, and so you provide that information.

Any other important information that you want to share with Tribunal, you provide that here, and then all the documents that you have attached you check this box and depending upon what documents you’re providing and these are relating to any other proceeding that you may have on the same topic, you can plead that out. And then the last action is declaration and signature, you put the date here if you click on it you can actually choose a date – that’s the 22nd of February 2017, which is today. And then if you want to file this electronically, you check this box, which represents your signature. So once this is done, you save this document in your computer and you can send it to Human Rights Tribunal by email, this is the email address of the registrar. You can send it by fax and we’ll talk about how you send the documents.

So this is about filling out the form and I think some of the tips that I mentioned was that you want to make sure that you cover as many respondents as you can, you cover as many areas of discrimination as you believe were relevant, and then you want to use the Schedule ‘A’ to provide an effective narrative of what happened, a compelling story so that can help your case.

Okay, so you can file the form with the Tribunal by email, you can send it by fax, you can go in person, you can send it by mail or courier, and you may want to know that there are no fees for filing a Human Rights application, there are fees for filing court documents but no fees for Human Rights application.

Okay once the application is filed you want to make sure that you have some confirmation. If you send it by email, generally speaking any email that you sent to Human Rights Tribunal, you will get an automatic response stating that your document or email has been received and the Tribunal will review it at a later stage. You want to make sure that you keep that email for your records because if you need to prove at a later stage that you have actually filed your application then that will be helpful. If you file it in person you want to make sure you have some confirmation, and if you use another means like courier or registered mail you want to make sure that you have some confirmation of the filing of your application form.

Okay so what happens after you’ve filed? The Tribunal will review your application to make sure it’s complete, it’s proper, and that it’s something that is within the jurisdiction of the Tribunal. If it’s not, the Tribunal will contact you and advise you that your application has certain deficiencies and provide you the reasons why the application cannot be heard. But if everything is okay then the Tribunal will issue a file number and then will send you a letter confirming that your application is issued, and the Tribunal will send out the application to the respondents. It’s Tribunal’s role to serve the application on the respondents, you don’t have to serve it. So once the Tribunal will serve the application on the respondents, and they have a specific timeline to complete their response and file it with the Tribunal, and the Tribunal will send you their response, and then you will have an option to file a reply and we’ll talk about those further steps in our future lecture, but the idea of this lecture was to for you to see where the forms are, how do you download them, how do you generally complete those forms. We haven’t talked about the contents because you can have all kinds of discrimination issues and we have not discussed that in this lecture, we’ll cover that probably in other lectures. But the idea is you complete the form, you file it, you want to make sure that you keep records of the filing. And then once the Tribunal has reviewed your application, they will issue the application by issuing a file number and then serving it on the respondent.

Hopefully that was helpful for you to understand how the actual application is completed and filled out. On that Tribunal forms page there’s an applicant’s guide that I mentioned there also Rules of Tribunals procedure – you want to make sure that you read those rules on it to better understand what is the process at the Tribunal in terms of advancing your application. We’ll continue to add more topics and more lectures on the Human Rights matter, but if there’s anything you want to share with us, any topics that you want us to cover specifically, please let us know and we’ll be happy to add that in our future lectures. Thank you for watching.