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Welcome everyone this is Amer Mushtaq from YouCounsel.

Today we will talk about wrongful dismissal. The issue that we’ll be dealing with today is how do you figure out whether you as an employee are wrongfully dismissed or not. What we have done is pose 10 simple questions that you can ask yourself. Depending upon your answer to those questions, you will be able to understand whether you have been wrongfully dismissed or not. On that basis you can decide to pursue your wrongful dismissal action either yourself or through legal counsel.

We begin with our usual disclaimer that this course is not legal advice and if you have any specific questions you must contact a lawyer or paralegal to get the answers.

We’re going to start with talking about different terms that are used for wrongful dismissal. Some of the terms are wrongful termination/ wrongful discharge /constructive dismissal /dismissal for cause / fired or sometimes people call it a layoff. All these terms are similar or they can be used at times interchangeably but they all represent what is called a wrongful dismissal—which is a blanket term that we use in employment law. What exactly is wrongful dismissal? Is it possible for me to explain wrongful dismissal in one basic concept? The answer is yes.

Wrongful dismissal is fundamentally or basically a breach of an employee’s employment contract—that is the 1^st part. The 2^nd part is that, that breach of the employment contract must be a breach of one of the fundamental terms of the employment contract. What do I mean by those two things? Let’s take (1) breach of employment contract. Many people (and we’ll have a separate lecture where we’ll talk about what is an employment contract and we’ll get into the nitty-gritty of it but over here I just want you to understand this) think that an employment contract is when there is something in writing, two parties have signed it, there’s a written document confirming that there’s a contract and that’s how an employment contract is created. That is not necessarily the case. Once you have an employment relationship with an employer you have an employment contract whether it’s in writing or not. It doesn’t matter if there is no written document. You have an employment contract—it is just an employment contract that is an unwritten employment contract. That’s number one.

With respect to employment contract, I want you to understand this. If there is a written document, whether it’s a job letter/job offer or it’s called an employment contract—all of these things could be similar or same. If you have a written employment contract or written job offer, the terms and conditions that are specified in that contract are obviously part of your employment contract but those are not all the terms of your employment contract. There are and there will be additional terms that are not written in that employment contract which are called implied terms. “Implied terms” means that those terms are assumed in your employment contract even if they’re not written in there. That is because of centuries of development in the employment law area where the courts have written in certain employment contracts terms which are not in writing but they are there and so they’re called implied terms. Your contract, if it’s in writing has two components: (1) one’s the written component and (2) one is the non- written component which is the implied terms. Breach of your employment contract could be either for the terms that are in writing or could be the terms that are implied or could be both. That’s number (1). Number (2), the breach has to be one of the fundamental terms. What are fundamental terms? Fundamental term is very simply one of the important significant terms in the contract. I’ll give you an example. Let’s say your employment contract says your annual salary is $60,000. When you begin employment you start getting paid on the basis of $30,000. Your salary is a fundamental term and the breach of that term is a breach of the fundamental terms of your employment contract. Another example could be that you were hired as a Manager, Accounts Payable. Once you start working, you realize that your position is actually that of an accounting clerk and not as a manager in the in the accounting. Your ‘position’ is a fundamental term and a breach of that term could be a breach of your employment contract. That is just a broad example. Now, you understand the basic concept of what “wrongful dismissal” essentially is—if there is a breach of your employment contract and the breach is one of the fundamental terms of that employment contract then that breach or those breaches can give rise to an action or a claim for wrongful dismissal so that’s the fundamental concept.

Okay, now jumping right into the kind of questions and these are examples or could be more questions but we have picked the most common ten questions. We’re going to address those. First part of the question is when you’re actually terminated—what I mean by that is your employer comes to you and says your employment is ending. This is your last day or such and such date is your last day and you’re terminated /you’re fired or laid off whatever you want to call it. If the general term is that your employment is ending then that’s a termination. These I believe are six questions when you are actually terminated you know that your employment has been ended by the employer. (1) One scenario could be that you did not receive severance at all or the severance you received was improper or insufficient. (2) the second could be the breach of written contract—I said that your employment contract would be in writing and if it’s in writing and there is a a term in that contract that is being breached by the employer you want to look at that. You want to check that whether there has been a breach of your written contract. (3) question number three is whether there’s a breach of your statutory rights—they have not been fulfilled by the employer. (4) Next question is whether your termination is based on discriminatory grounds. (5) Question five is whether the employer conducted itself in bad faith in deciding to terminate you—that is another question. (6) The last question is that the employer is alleging ‘just cause’ for dismissal, i.e., that you have done something fundamentally wrong and then the employer has a right to terminate you for ‘just cause’. So those are the six questions and we will go into each question one by one and will quickly cover those topics but those are the six questions when you are actually terminated you know that you’re terminated.

Now the next 4 questions are when you’re not terminated the employer has not come to you and said that your employment is terminated but you believe the breaches are such that you can claim termination. This is called constructive dismissal. You are constructing it based upon the employer’s conduct that your employment has ended. Questions relating to that one is (1) a change in duties: if there is a fundamental change in your duties it may give rise to constructive dismissal and therefore wrongful dismissal; (2) there may be a change in your remuneration—especially a decrease in your remuneration; (3) change in working environment—the environment includes harassment or is poisonous; or (4) there could be a breach of your written contract. These are four questions that you want to ask yourself to determine that even though the employer has not terminated you, do you have a right or grounds to claim constructive dismissal and wrongful dismissal?

Let’s get into each item one by one. No proper severance or improper severance. This is the most common reason for claiming wrongful dismissal. In fact, 60 to 70% of my employment law practice is really based upon clients coming to us and asking questions whether they received proper severance because they have been terminated. If not, then can we commence a court action and in over 90% percent of those cases the severance that they received is actually not correct—it is improper and so there is usually a good case to commence a wrongful dismissal action so. That is the most common reason—that the employers refused or failed to provide the employee proper severance and so we go after that.

With respect to your severance, we want to talk about 3 things: (1) the severance you may have contractual rights in the severance. What I mean by contractual rights is we’re talking about the written contract that you have. Your written contract may say that Mr. Smith when your employment is terminated and we decide to terminate your employment without cause, you will be entitled to six months of pay or something like that. That’s your contractual right in your written employment contract. For whatever reason, the employer fails to abide by that contractual term and that gives rise to a wrongful dismissal action. (2) Common law rights. Even if there’s no contractual rights or the contractual rights are improperly drafted—unlawfully written—you have common law rights in terminations. In most cases this is what happens that employee has common law rights and the employer either doesn’t know about it or refuses to pick on the right so that gives rise to a wrongful dismissal. Then the number three (3) statutory rights. Remember in a previous lectures, if you have been listening to us, we talked about certain statutes that are relevant to employment law so for instance the Employment Standards Act 2000 of Ontario. Other provinces have similar legislation that contain rights that describe that if you as an employer are terminated you are entitled to termination or severance pay and what those amounts are. If you are not receiving proper severance or no severance at all then that’s one ground that will give rise to a wrongful dismissal action.

A wrongful dismissal action: how do you determine? And this is one area where you will be best served if you consult me, do your Google search and listen to our lectures. That will give you a very good sense of whether you got your proper severance or not. You may be better served if you contact an employment lawyer and get a consultation and find out whether your rights have been violated or not because this is one area that is too complicated and a lot is at stake. You could get significant rights without doubt and if you have no knowledge that your rights are violated you may end up losing those rights. This is one area which is a bit complicated and something to be looked into deeply. Now breach of written contract, like I said you have a written contract and it may have clauses about severance termination rights. If the employer does not follow those rights then, that is a breach which will give rise to wrongful dismissal.

What about commissions? If you are in a position where you are entitled to commissions, you got your severance and termination pay but you haven’t been paid commissions—did not get your commissions that you should have received even after your terminations and you’re not getting those—that may give rise to wrongful dismissal.

Similarly, if you’re entitled to significant bonus and you don’t get that. There could be other rights and it depends upon the contract. There could be all kinds of rights that are in the employment contract that state what will be done, what things you will receive upon termination and you don’t get those and you have a claim for wrongful dismissal.

Breach of statutory rights: as I said briefly, that if you look at Employment Standards Act It talks about terminations and it has a specific formula. Let’s say, you didn’t get those rights, e.g., overtime pay—if you’re entitled to that and you didn’t get it. Then what about severance pay, which is a separate pay category from termination pay. There are specific requirements for that in Employment Standard Act in Ontario (similarly, in other provinces) or any other rights that are stated in the statute and you are denied those rights at termination, then you may have a claim for wrongful dismissal.

Discrimination: this is based upon a breach of the Ontario Human Rights Code. That’s the human rights legislation in Ontario. There is similar legislation in the other provinces. If you believe that you are terminated because of certain discriminatory grounds, for instance, you ended up having some sort of disability and that was the reason or one of the reasons why the employer decided to terminate you. Or because of your gender; because of your sexual orientation; pregnancy; creed; religion; ethnicity—all these grounds are listed in the Human Rights Code—and if it’s a breach of one of those grounds and that’s the reason or one of the reasons or one of the factors in your dismissal then you have grounds for wrongful dismissal.

What about bad faith? Bad faith could be a variety of things—where the employer is acting in bad faith towards you, the employee. One example, is actually coming from a case that I’m dealing with now—is really unrealistic demands—an employee goes away on maternity leave, comes back and her duties are changed to the extent that she’s now required to work for three jobs as opposed to one—which is impossible for her and gives rise to a situation where she may see constructive dismissal. Another example which is not uncommon is unfair performance evaluations—(unfair appraisals) employers sometimes try (specially for long service employees) to build certain grounds so that they can build a case for the dismissal of employee for cause. Then all of a sudden, without any wrongdoing on your part you get to see a series of unfair evaluations/performance evaluations which may lead to a claim for wrongful dismissal.

Surreptitious change in contract. This is something that’s not too uncommon either and this happens to long service employees with 20/25/30 years of service. When the employer is coming to a point where they want to terminate their employment and realizes that they have a significant amount of severance to pay they try to sort of bring in a new employment contract. And do it surreptitiously, so that the employee doesn’t know what he or she is getting into and does not get an opportunity to talk to a lawyer and then signs a contract which was completely unfavorable to him or her without realizing what she has gotten herself into. Those could be sort of some of the grounds that may give rise to bad faith conduct and may give rise to wrongful dismissal.

Now coming to just cause dismissal which is usually the employer saying that you, the employee have conducted yourself in such a bad manner (Performance) that we should not give you any severance at all. You just get paid up to the last day and then you’re gone. You’re not entitled to E.I. or anything and that’s called “just cause dismissal”. Sometimes the employer, though not often, try to use an employee’s performance as grounds for just cause dismissal. Most of the time, performance does not amount to just cause dismissal but that’s what it is claimed. Allegations about conduct. Some of the legitimate examples of just cause dismissal are that an employee has a physical fight with another coworker at the workplace; harassed another employee; conducted violently; used abusive language; stole money from the employer; stole employer’s property: these are some of the legitimate causes for just cause dismissal. Any allegations about misconduct which the employer uses to say that you, the employee, are terminated for just cause and if you believe that those grounds are not valid—those allegations are not fair then, you have a wrongful dismissal case against the employer. One thing that you want to keep in mind and this is the most important part is that ‘just cause’ dismissal is really the capital punishment of employment law world. That is how you want to understand it. Small infractions here and there, like a bad performance review, etc, things like that usually do not amount to ‘just cause’ dismissal. Your conduct should be so bad, for instance, if absenteeism is the ground for just cause dismissal—it has to be repeated. Offences, you’re constantly ignoring the policies, there’s accumulative conduct that shows that there’s just cause or the conduct is so bad—so severe (you defrauded the employer—you breach the trust of the employer) by breaching the confidentiality agreement and things like that are sort of the valid grounds for just cause dismissal. Lack of performance or the inability to perform—sometimes the employers will argue that “you were supposed to sell as a salesperson, you were supposed to sell one hundred widgets per month and you sold only eighty. We have just cause against you”. Not really. If you are terminated on just cause basis then you must ideally talk to a lawyer (employment lawyer) and see if there is a valid just cause under employment law.

Let’s quickly touch upon constructive dismissal. I mentioned 4 scenarios for questions (1) change in duties; (2) change in remuneration; (3) change in work environment and (4) breach of contract. (1) a change in duties: I gave an example that you were hired as a Manager. The employer decides to demote you unilaterally by it’s own decision and makes you a clerk. Now that’s a fundamental change of your terms of employment. Even though you’re not terminated by the employer, the employer has changed the fundamental nature of your duties. So you have grounds to walk out and seek constructive dismissal. (2) Similarly, change in remuneration: if your remuneration is reduced by ten percent or more then that safely can be considered grounds for constructive dismissal. There are ways how you pursue constructive dismissal and that’s a separate topic. Change in remuneration, which is significant enough, can give rise to a claim for constructive dismissal. (3) change in work environment: In the environment you are now you got a new manager who has a harassing behavior towards you, is a bully, who acts and breaches and is in violation of the fundamental code of conduct and that may give rise to a claim for constructive dismissal. (4) and obviously breach of contract: an example could be that you’re still working and you’re showing up to work and you are given being given tasks but you’re not getting paid and you haven’t received pay for the last two months and that could be another reason why you can claim constructive dismissal.

We have gone through ten questions. Pose these questions to yourself and see if you fit into one or more of these categories. If you believe that the employer did not have the appropriate grounds to terminate you or has changed your duties in such a way that you can claim constructive dismissal. Then, that’s the avenue that you can pursue.

Hopefully this was helpful. Please post your questions, comments and anything that you want clarification on and we’ll be happy to cover that in the next lecture. Thanks for listening.

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Welcome everyone. It’s Amer Mushtaq from YouCounsel.

Today we’ll talk about fighting parking tickets in Toronto. This is a very basic lecture that provides some basic understanding of the process and tips on how to fight parking tickets. I am not a lawyer who practices anything regarding parking tickets, so this information is coming from my personal experience with the parking ticket that I had received and I thought the ticket was unfair. You are welcome to post your comments and provide your own tips and your own experience of how to fight these tickets if you believe they are worth fighting. A quick disclaimer, that this course is not legal advice. If you have any specific questions you should contact a lawyer or a paralegal.

Some of the examples of the kind of infractions that lead to parking tickets are: unpaid meter parking; you park in a disability parking place illegally; you park close to a fire hydrant or you illegally park your vehicle generally. These are a few infractions if you want to look into the infractions in more detail, maybe the good source is to go to Google, type in Provincial Offences Act. This is the legislation that talks about all kinds of infractions: parking traffic tickets and what not. That is the source of legislation that you may want to look at if you need to learn more about it.

If you follow the Table of Contents, Part 2 is the one that talks about commencement of proceedings for parking infractions. If you expand this particular part you will see all kinds of information: definition of parking infraction; municipal bylaws; how do you provide the Notice of Intention to Appear; how do you set it down for trial, etc. You can review that in more detail and other information in the Provincial Offences Act. These are some of the examples that I can think of—that I provided a view of some of the common incidences where you get a parking ticket.

Once you receive a parking ticket you have three options. (1) you pay voluntarily within seven days; (2) you pay the set fine which is to be paid in 15 days; or (3) you set a Trial date which is to be done in 15 days. Item number (1) voluntary payment: if the face of the ticket states that X amount of dollars can be paid as well into payment then you can make that payment, otherwise it will state the amount of fine and then you can pay that fine within 15 days. There are easier ways in Toronto to pay those fines or voluntary payments. You can do it online on the City of Toronto website through visa or any other credit card. That is pretty straightforward and you can do that.

If you need to set it down for trial—which you know my recommendation is—if you have time and energy to challenge the parking ticket then that is a better strategy (even if you think that you deserve the ticket, i.e., you did cause that infraction). You may be able to save some money by disputing it. For trial you literally have 15 days from the day that the infraction ticket is issued to you. One of the ways that you can set it down for trial (the only way) is that you have to appear in person at that Court Office or somebody has to appear on your behalf (as your agent) in that Court Office. It has to be done physically. You go there with your ticket and then stand up in the queue. Go to the window. You say “I want to challenge this ticket. I want you to set a date for Trial”. They will mark that this is the Notice of Intention to appear in court that must be done within 15 days. If you don’t do it within 15 days then it may be determined that you are actually guilty of that offense and your penalty may be set. There are consequences if you delay it. You must do it as soon as possible.

Once you have been scheduled for trial you will receive the Trial Notice in the mail. It will have a date on which you have to appear in such-and-such court and such-and-such time and you will have a court number indicated on that Notice. You appear at the Court. You will notice when you go outside of that courtroom that there will be a small board which will have a list of all the people who are attending that court that day. Find your name, then, make sure that you have the correct time and then make sure that you are 10 or 15 minutes before the opening time. You line up outside the door of that courtroom because you do want to be ahead in line to get dealt with sooner.

In terms of your options, once you are in that line and the door opens you will see that the prosecutor will be at the front, close to the bench where the Justice of Peace will preside. Everybody lines up on the right or left side of the prosecutor and the prosecutor will deal with you one by one. This is prior to the Justice of Peace even attending or coming there. This is a preliminary process. There is a queue. You get to your number and then the prosecutor will ask you how you do you want to plead. You can either plead guilty or not guilty—that means you want to proceed with the Trial. You can plead guilty with an explanation which is an interesting way of pleading guilty but I’ve seen that happening at least in the process that I attended and that you are guilty you made that mistake of illegally parking or improperly parking but you have an explanation that could get you some sympathy from the Justice of Peace. Then you can also say to the prosecutor that you want to wait for the police officer to arrive and then you will decide what you want to do. That is an important thing to know because the officer who has issued you the ticket—that officer must be present for your case to proceed especially if you are pleading not guilty. This is a common way to get rid of these tickets because often times officers have multiple commitments and they cannot attend on that particular day with respect to your matter. If he does not attend on that particular day when the time comes for you to appear before the Justice of Peace, then your matter simply gets thrown out. Oftentimes, it is actually in every single case, what I suggest is that you should wait for the police officer and see if the officer is attending. If the officer is attending, then you can decide what you want to do. Those are some of the options prior to commencing the trial process. Now the Justice of Peace arrives. Everybody stands up. The Justice of Peace sits down. Then one by one the prosecutor will call in individuals. You will notice (I mean I when I attended this court I thought it was like a zoo), the prosecutor is going through about 100 people in like 1 to 1.5 hours. They have to decide if somebody is accepting the guilty plea and that needs to be entered, the person has to accept it, get the fine, get the notice provided to him and then move out.

This is a pretty fast process. There are advantages and disadvantages in that. We will talk about it briefly. You are called and normally what happens is the prosecutor will complete all of the people who have pleaded guilty because that is faster and will hold off on matters where the officer has not shown up. Basically you know he or she will wait till pretty much the end to see if the officer shows up for that particular case so that the matter can proceed to trial and then the last part are the people who are pleading not guilty and they are proceeding with trial. That is how the process begins.

When it is your turn you want to make sure that when you’re appearing in the court you are dressed properly. It does not have to be a suit and tie but something presentable and you want to be humble. You want to gain the sympathies of the Justice of Peace who is always addressed as Your Worship. It is not your honor. Judges are addressed as your honor. Justices of Peace are addressed as Your Worship—so you address the Justice of Peace as Your Worship, answer the questions when asked (answer only the questions that are asked), make your submissions when they’re allowed. Do not ever interrupt the Justices of Peace, do not interrupt the prosecutor. This is the simple basic manner of exchange (of communication) that you must follow in court because under no circumstances do you want to upset the Justice of Peace because believe me that you will not win any favors by making unnecessary arguments with the Justice of Peace. You want to explain your situation, especially if you have a reasonable explanation. When I attended twice on the same matter, I noticed that every single time somebody came up with an explanation which kind of made sense to the Justice of Peace—every single time it at least resulted in reduction—a significant discount in the fine. I saw fines which were requiring the penalty of $200 or so came down to $30 – $40 or so. You could get a significant reduction in your fines if you have a reasonable explanation.

The explanation could be that you parked by the fire hydrant and it was raining or there was snow and you couldn’t see it properly—things like that, or you had some emergency and then you needed to rush to someplace—all of these explanations are not enough to justify that your case may be acquitted unless you have an explanation that really challenges the validity of the ticket that is being issued. We all have issues in our lives on a day-to-day basis which put us in a situation that we may end up committing infractions that we were not hoping that we will commit—it happens—and Justices of Peace are usually cognizant of that and they take that into account. That is one reason why I say that even if you feel that the ticket was properly issued just by sheer fact that you go all the way to the court, schedule the trial date in person, attend the trial and provide an explanation—the chances are that you will get a significant discount in fines

I’ve added a term called Use of Photos. If you have reason to believe that the ticket was improperly issued, you want to make sure that you take photos right at that time when the ticket was issued—not afterwards. For instance, if you were given a ticket that you parked within three meters off the fire hydrant and you believed that you were not within three meters but four or five meters or something you want to take pictures right then and there. Make sure that the pictures are able to prove what you are saying. You want to make sure that those pictures are notarized. (A) you want to take the pictures yourself and (B) make sure those pictures are notarized so you can use those pictures as evidence at trial. Those are some of the things to keep in mind.

I wanted to share my experience with you and why I ended up in front of the court for this issue. One Sunday morning I was meeting some friends for brunch in Liberty Village in Toronto. As it was Sunday morning I arrived there early. There were lots of street parking /meter parking available. I chose a very convenient spot. There was lots of parking available. I parked my car on the first possible parking spot on that street—in front of the meter or close to the meter. I went to the meter. I took out the ticket. I paid it. I put the ticket on my dashboard and went to attend my brunch. I came back within the time that I had paid for and lo and behold! I see that there is a parking infraction ticket on my windshield. I was quite upset to see that. My initial thought was that the officer did not see that I had paid for parking so I picked up the ticket and I read it. It said parked within three meters of fire hydrant. That upset me and when I looked on the side of the street, sure enough there was a fire hydrant there. I was upset and I was upset primarily because it was a City parking. The City had put the meter there. It was the City that had put the fire hydrant there. It was not a temporary fire hydrant. It was a permanent fixture. Why would the city allow parking within three meters when they have put a fire hydrant there? You can’t send 2 controversial messages. I only looked at the availability of parking and the parking meter and because I noticed that parking is allowed, I did not bother to look further to see if there was a fire hydrant there. I thought this was a mixed message. It was improper and under the circumstances my tickets should be thrown out. That was the principle fight that I wanted to take. The end result was that I was able to get my taken thrown out—not because I had a valid explanation but my trial took so long that I believe the prosecutors got tired of it and the Court got tired of it. In my second appearance, the police officer just did not show up and they threw my case out. That was one example of how these things operate. But in your case there may be circumstances where the ticket is genuinely unfair and so you want to fight it. But again, you want to make sure that it is worth your time and effort. If it is not, just pay the fine and move on.

Hopefully this is helpful. I will invite you to share your experiences with parking infraction and share any tips that you have—any suggestions that you have. By all means post that on the video (in the comment section). Hopefully, you have gotten some beneficial information from this lecture. Thank you for watching and we will see you in the next lecture.

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Welcome everyone.  This is Amer Mushtaq from YouCounsel.

Today we will talk about how do lawyers charge their fees in Canada. Before we begin, there is the usual disclaimer that this course is not legal advice.  If you have any specific questions, you must contact your own lawyer or paralegal or the lost sight of opportunity for and for its.

Legal fees usually have two components: (1) one is the legal fees itself, which is paid to the lawyer and (2) the second component is disbursements.  Disbursements are all of the costs associated with your legal case.

Let’s talk about disbursements.  One of the things, that we can give, as an example of disbursements, is court fees.  For instance, if you commence a court action in the court you will have to provide certain fees for the commencement of that court action.  Similarly, there are other instances within the court action where you may have to provide some fees along with it.  For instance, if you are bringing a motion, there are fees for a motion.  If you are setting your matter down for trial, there are fees for trials.  So court fees are part of disbursements that clients are responsible for.  Similarly, process server fees—process server is a glorified term for a high-end courier if you call it that. If you have watched any movies where you see that somebody is at a restaurant or a club and a person taps them on the shoulder.  When the person turns around he says John Smith? And the answer is yes.  Then they hand over certain papers and say you have been served.  The person who is doing that role of serving documents is called a process server.  Process servers do a variety of things for law firms and their clients.  They file documents with the courts, serve it on different parties, get records from the court and so on and so forth.  They charge their fees which are part of a client’s disbursements.

Similarly, there are fees like agency fees.  For example, if you go to mediation and you have to hire a mediator the cost of that will come under agency fees.  In medical malpractice cases you may be getting your medical reports from doctors and other sort of clinics and those may fall under agency fees as well.  Any fees that you pay to some third party e.g., when you hire actuaries or damage consultants to provide expert evidence to the court and there may be fees associated.  All of those come under the umbrella of “agency fees”.  Then there are smaller kinds of fees e.g., for copying, binding, faxing and long distance calls.  The key thing to know here is that disbursements are costs that are associated with your particular case—depending upon what it is.  Those costs are the responsibility of the client. Mostly law firms obtain a retainer from the client and they use that money to pay for the disbursements as they go along or they can ask the client to pay directly to the vendor for those disbursements.

Coming to legal fees, the fee structure is generally of three kinds.  (1) hourly fee structure; (2)  flat or block fees or fixed fee structure; and (3) is contingency fee structure.  I will cover each one by one.  Hourly fee as the name implies is based upon the number of hours that the lawyer works on your case and then charges it accordingly.  For instance, if a lawyer charges $400 an hour and he works on your file for two hours—then the legal fees are $800 plus tax.  Hourly fees are captured usually at one tenth off an hour.  When you see a notation of .1 as the time entry for the lawyer, that indicates that the lawyer has worked on that specific tasks task for six minutes or less.

In hourly retainers you will see quite detailed invoice statements from the lawyer indicating the date and the time that the lawyer worked on your specific matter i.e., what dates that the lawyer worked on your file and what specific tasks did he or she perform in that file, then how long did it take him to do that.  Those are recorded as the lawyers do their work.  They have a software in most law firms where they keep on recording and then once the invoice is generated all of that information is already there. Hourly fees are not dependent upon results.  If the lawyer has worked X amount of hours—whether you win the case or you lose the case—you are bound to or are liable to pay those fees.

Second model is the flat fee / block fee model which is now becoming more popular primarily because clients would like certainty in terms of what cost they will incur for a specific matter.  These, as the name implies, are fixed fees and mostly they are coded per specific task.  For instance, in employment law practice if we are drafting a statement of claim or statement of defense on behalf of the client, we will and the client is interested in obtaining block fee quote, then we will advise the client based upon the amount of work that we will have to do, that this specific task will cost $X amount.  Those tasks are then listed in the retainer agreement along with the fees that will be charged.  The retainer agreement also covers some of the unanticipated costs that may arise—for instance if the other party brings a motion, which was not part of the usual court process, then the lawyer may advise that if that happens then $X amount will be charged for that particular task.  The main function of block or flat fees is that they provide certainty both to the client and to the lawyer in terms of the cost of the specific work that is being done.  Again, like hourly fees, these are not contingent upon results as long as the lawyer has performed the work, the success of that matter is not relevant in this case and the lawyer is entitled to the fees that are agreed upon.

Third model is the contingency model.  As the name implies, it is contingent upon the results.  Most contingency retainers indicate that lawyer will only get their fee if the client is successful either in a settlement or in a judgment.  If the client is not successful, then there are no fees towards the lawyers.  In contingency fee models the lawyer takes significant risk on the file.  Obviously his or her analysis of the case is that strong that he or she is willing to put his / her own time and effort with hopes that there will be some fees generated because of results that the lawyer will get achieve.  Contingency fee model is usually based upon a percentage of success.  It could range anywhere from 25% to 35%.  Once the settlement is achieved or the judgment is awarded that percentage is paid as legal fees.  Important thing to keep in mind in contingency fee retainer is that if your matter goes to trial (all the way to trial) and you are unsuccessful / you lose the case, the court will award some legal fees against you to be paid to the other side.  If that is the case, then you the client is responsible for payment of those fees. The lawyer is not responsible for paying fees to the other side.  The only risk that the lawyer is taking is upon only his fees but not on the other side’s legal fees.  If you lose, then you have the burden to pay the legal fees of the other side.  Finally, keep in mind that all of the disbursements that are incurred even on a contingency fee file are also client’s responsibility because these are costs associated—these are not monies that are to be paid to the lawyer, but are paid to the vendors and third parties.  Those are always the client’s responsibility—whether they pay at the outset or whether they pay towards the end, depending upon which law firm and what kind of case you have.  That is the contingency fee model.

Those are the three major models that are in place.  I want to go back to the block fee model one more time.  This has become popular.  As I indicated, one of the primary reasons why it is so popular now and increasingly so—and probably as you know, still underutilized is because Law Societies across Canada have generally now created this option of hiring lawyers on a specific task basis.  It is called unbundled services or limited scope retainer and I have talked about in a separate lecture on self-representation.  You can find more information on that.  Essentially the idea is that because the legal fees or the costs of retaining a lawyer have become so exorbitant it is so hard to retain a lawyer on a long term basis.   Depending on the length of the entire file you can actually choose when you want to bring in a lawyer to do a specific task and then just pay them accordingly.  Because there is now the option of unbundled services and specific limited scope retainers you can actually negotiate flat or block fees for that specific task and then have the lawyer represent you only for that part of your case.  Then you can continue to perform the representation of your case on your own or you can have the lawyer represent you for the entire length and still negotiate the flat fee.  This does give you some certainty.

Let’s go back to now the last slide that I want to talk about which is the selection of lawyers.  There are two things that obviously the clients want from a lawyer—(1) they want the certainty of the legal fees i.e., they want to know exactly how much money they will incur with respect to a matter and (2) they want some certainty or guarantee in terms of the results that will be achieved.  I want to talk briefly about both things certainty and legal fees.  It is something that obviously people want—they want to know how much they’re going to spend—if you are buying a pair of pants you want to know exactly how much you’re paying.  You do not want to be in a situation where the manufacturer says, “well it depends on how often you use the pants” and “you know how you use them” and what not—and our fee or our costs for the pants will be based upon that.  It is an odd way to pose that—because the legal structure is so different.  The certainty is possible in some cases while in some cases not.  I mean, you get absolute certainty when you have block fees because you know how much you’re incurring. 

But, even in Block fees there are unanticipated steps that may happen, not because of you, but because of the other parties—especially in court actions.  Even though you know with certainty exactly how much you will pay for that action—an unanticipated action, it may still increase the overall cost of your legal action. Certainty is achievable.  It is more and more possible.  In my practice I am pretty confident about every single step and how much it will cost my client.  I can provide certainty but sometimes it’s not possible to do so.  The second component is: results.  You be wary of any lawyer who guarantees success of any kind because the simple fact is when you have a court action, it is a judge or a panel of judges who are going to decide and they may decide against you no matter how strong your case is.  There is no guarantee.  A lawyer can always indicate to you that based on previous cases and based upon jurisprudence your chances of success is very high i.e., 99% or 99.9% but it can never be one hundred percent guaranteed—because the lawyer himself or herself is not the decision maker, somebody else is.  And also depending upon how your case performs—you may have a bad day at court and your testimony may not be as strong as your case is and that may jeopardize the success of your case.  So there is no guarantee of results.  Yes, the lawyer can advise what are the chances of success and your chances of success could be very high.  Those are sort of the two cautions. 

With that in mind, I want to talk about whether you want to hire a lawyer whose legal fees or hourly rates or contingency fees are low vs. a lawyer who charges a lot more.  What role should play in your decision to hire lawyers?  Obviously, I completely agree with you that the cost of legal services are a strong component for a client to decide which lawyer to hire but I want to give you a word of caution that hiring a lawyer is no different than hiring a plumber or hiring a general contractor.  You would not simply hire a plumber or a contractor because the rates that that person is offering are the cheapest.  The same principle should apply in hiring a lawyer.  My recommendation is that fees should not be the sole factor for you to decide whether to hire the lawyer or not.  It should be one of the factors.  You should obviously get referrals, get some understanding of whether the lawyer has expertise in what you want, whether the lawyer will be suitable for your kind of case and obviously whether the costs are within your reach.  It should be one of the factors but not the sole factor.

Hopefully this lecture has given you some insight on how lawyers are retained and how they charge their legal fees in Canada.  Look forward to any comments and anything else that you want to explore in this area.  Further please send us a comment or send us a note and we’ll be happy to include that in our next lecture.  Thank-you for watching.

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Welcome everyone this is Amer Mushtaq from YouCounsel

There is a term that is often used in court cases (in civil cases) it’s called Lawyer of Record.  What does this term mean? What are its implications? What is it that you need to know?  We will discuss that today.  Before we begin, we have the disclaimer that this course is not legal advice.  For any specific questions please contact your lawyer or paralegal or contact your Law Society

Lawyer of Record: what does it mean?  We will define that term.  We will explain it—how do you appoint? How do you remove a lawyer of record? And, what are some of the consequences if there is a removal order issued for the removal of a lawyer of record?  We will talk about that.  Let us begin with the meaning of “lawyer of record”.  Lawyer of record is essentially a lawyer whose name appears in all of the court documents on behalf of a client.  This happens usually when someone commences a court action and they go and hire a lawyer and that lawyer drafts documents, submits it in the court system and serves it on other parties.  In those documents that lawyer if he is retained to represent you as a party for the entire matter he or she will put is or her name as the lawyer of record.  Every court document will show that that specific lawyer represents that specific party.  If there are any notices or any documents that need to be served or sent to that party they are directed towards that lawyer.  Therefore, essentially it’s a lawyer for the purposes of that court action.  He or she is the lawyer of that specific party and that’s what the court records indicate.  How do you appoint and remove a lawyer, we’ll talk about that.

There are three simple ways of appointment or removal.  If you already have a lawyer and he or she is your lawyer of record and when you appoint another lawyer then that’s one way of removing that lawyer and appointing the other one.  There is a specific mechanism specified in the Rules of Civil Procedure.  The new lawyer has to serve what’s called a Notice of Change of Lawyers on the previous lawyer and on all of the parties or their lawyers and then file it with the court.  That announces and puts in court records that there is a new lawyer who has been appointed.

There is another method of changing or removing the lawyer.  It is called Notice of Intention to Act in Person.  You are a party.  You were represented by a lawyer.  He or she is the Lawyer of Record.  At some point you decide that you no longer require that lawyer’s services and you wish to represent yourself, then, in that case there is a specific notice called Notice of Intention to Act in Person.  You serve that Notice on the lawyer, i.e., the previous lawyer and all of the lawyers of the other parties.  Then you file it with the court.  That ensures that you have the capacity or ability or permission to represent yourself. 

In case of a Corporation, as you may know—we have another lecture on this—but just to briefly tell you that a Corporation cannot represent itself, unless it has the permission of the court. The third category where a lawyer can be appointed or removed is if the Corporation removes it’s lawyer and then seeks the permission of the court to say that the Corporation intends to represent itself and the court grants that permission, then that’s the third mechanism by which the lawyer is appointed or removed.

The fourth mechanism is by Court Order.  The last one is by way of a Court Order.  The first three are by understanding and by mutual agreement.  The last one through Court Order is usually when there is some sort of conflict and the party is unwilling or is not reasonably agreeing for the lawyer to remove himself or herself.  Then there is a motion that needs to be brought in court for that specific order.  The court issues an order which basically says that that specific lawyer will no longer be the Lawyer of Record for a party.  That is the fourth scenario in which the lawyer could be removed.  Just so you know the fourth scenario, as a way of example, arises in some cases when the lawyer and the party have a break in relationship either because of their understanding of how the case needs to proceed or the party may have lost confidence in its lawyer or the party may not have paid legal fees to the lawyer.  Some of those issues arise and that leads to lawyers seeking an order from the court to have himself or herself removed.   

With respect to the lawyers removal and appointment—all these matters, including Lawyer of Record, Rule 15 of the Rules of Civil Procedure of Ontario is the one that deals with that.  We have discussed Rule 15 in another lecture which was on self representation.  This Rule is specific to all kinds of representation and Rules 15.03, 15.04, 15.05 and 15.06 are sub rules of Rules 15 that specifically deals with the appointment of a lawyer, the removal, the intention to act in person or a corporation’s desire to represent itself. 

You can have a look at that.  I will quickly show you the slide where these rules are and then you can review them on your own later on.  One thing to keep in mind, which is important, is that once the Court has issued a removal order you have literally 30 days, and if it’s the order of your lawyer you literally have 30 days to either appoint another lawyer or serve the Notice of Intention to Act in Person or in case of a Corporation, to get the permission to self-represent. 

This timeline is important.  This timeline is triggered when you have been given or you have been served with the Notice with the Order from the court that so-and-so lawyer is removed, then within 30 days you have to either appoint another one or if you want to self-represent then the Notice for that.  If you’re a Corporation and want to self-represent, then, you have to get permission from the court to self-represent or hire/appoint another lawyer.  That needs to be done in 30 days.  If it is not done within 30 days the court actually has the power to dismiss your case altogether or stay it or whatever it deems appropriate.  These timelines are important to keep in mind in case that there is a removal order for a lawyer. 

These are some of the basic things that we wanted to touch upon so that you understand the purpose of a “lawyer of record” and the circumstances of its appointment and removal.  Any questions or comments, please post on our website or on the YouTube channel and if you require any legal advice by all means contact us.  Thank-you for listening.

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Welcome everyone.  This is Amer Mushtaq from YouCounsel.

Today we’ll talk about some of the things that you must consider when you need to hire the best, the topmost employment lawyer in Toronto.  The principles that we will discuss, I believe, are equally applicable if you intend to hire a lawyer—let’s say in a family law area or a criminal lawyer.  The examples in this lecture all focus on employment law.  Before we begin we have the usual disclaimer that this course is not legal advice.  If you have any specific questions, please contact your own lawyer or your paralegal.

Let’s start by asking these questions: what is the function of the lawyer? What does a lawyer do for his or her client?  We respond to this question as follows: a lawyer helps clients achieve his or her goals in the shortest amount of time by spending the least amount of client’s money.  Now this principle seems to be rather straightforward but from our experience, and you will notice from experience of others, is that oftentimes parties lose sight of this basic principle when they’re engaged in legal process and it happens all the time when parties are spending unnecessary time in a legal process and it’s not helping them out. So, let’s unpack both of these terms one by one.

Let’s talk about the shortest amount of time.  We know that time equals money.  Time is valuable when you’re talking about time in the legal system/the judicial system.  What are some of the things that you want to keep in mind?  You want to get in, you want to get what you want out of the legal system and you want to get out.  Essentially you do not linger in the judicial system.  I can assure you that the longer a party stays in the judicial process the more it loses.  This will apply to every single case.  I have seen it happening to every single case.  I can assure you that if you do research on this issue you will find the same. 

There is a reason why parties who are successful at trial (who have won their cases) don’t walk out happy at the end of the day.  It’s because they end up losing a lot more by spending unnecessary time in the judicial system.  You will hear arguments against this principle.  One example I can give you, is let’s say you are a company and an employee or a former employee sues your company.  The lawyer may give you advice to say: let’s drag out / drag on the judicial process making the plaintiff’s / the other party’s life difficult—make that person bleed time and money and cause this person stress and that’s the best strategy.  I can assure you that it doesn’t work – it doesn’t work in the sense that when you as a company are making the other side suffer or you as a party are making the other side suffer, you are doing it at your own cost as well.  You are bleeding money and time as well.  You are focused on a fight that is unnecessary.  Also, at the end of the day when somebody else / when the other party is losing time and money, that does not necessarily translate into your success.  This argument that staying in the judicial process for long may help you in some way is not correct and you should not buy it.

With respect to cost, I think it’s important to keep in mind: what are your true costs in the judicial process?  We have, sort of, defined it for you.  Cost equals (1) the money you have received or saved in the judicial process, (2) less your legal fees and (3) less lost opportunities to earn money elsewhere.  This third point is often neglected.  It’s not a philosophical point.  We have actually seen it happening in many cases that we dealt with.  Especially in the employment law world, where an employee loses a job and he ends up or he has some other grievance against the employer and he sues the employer,then continues the fight just to sort of prove a principle or just to get the dollar amount that this person (this client) wanted to get out of the company because he or she believed that they were entitled to that amount of money.  In that process these clients/these employees lose focus on other things in their life—whether it’s the relationship with family or friends, whether it’s to focus on finding another job whether it is to find other courses, whether to start a business and all of those—because you’re so entrenched in your legal action that your mind, your focus stays with that until the process is completely over.  There are a number of lost opportunities where you can focus on.  You don’t end up doing that and that’s a significant harm.  That is something that must be taken into account when you’re engaged in the legal process.  That is not to say that you should not engage in the legal process but my point is that there is a purpose; there is a reason why you engage in the legal process and you should not have unrealistic expectations out of it.  You get what you want and then you get out.

Another point that I wanted to make is answering this question: should you come to the legal system, should you engage in the judicial process to fight for principles?  The straight answer is no—absolutely not.  I think the important thing to keep in mind is, the judicial system is fundamentally about awarding money if you are harmed in any way.  The role of judicial system really is to consider that harm, monetize it in some way and award you that money.  Peripherally you can have success on some principles.  That’s not essentially what the court does.  Keep that in mind.  My advice is do not fight for principles in court, if you do not believe or your client does not, or your lawyer does not believe that there is significant money that you will get on top of that. By all means fight for principles,if you have excess money—you have hundreds of thousands of dollars lying around—and you can’t imagine a better purpose then to prove your point in the judicial system by all means do so.  For ordinary people, for everyday people who are involved in the day to day grunt work of life, who have bills to pay, who have financial obligations—just the fight for principles is not a good way to spend your money and time.  If you really want to be a person who wants to fight for principles, I think you should become an activist—there are other avenues, but  coming into the judicial system is not a recommended course of action.

We talked about some of the things (the goals) that are practical from a judicial system and how you accomplish those.  It was an important discussion because once you are clear about your own objectives what is that you want out of the judicial system you will be in a better position to hire the lawyer that meets your objectives or helps you get to your objectives. 

Now we’re turning our focus on hiring the lawyer and the basic point I want to make is that you know lawyering, or a relationship with the lawyer is essentially a relationship of trust and it’s no different than your relationship with any other service provider.  It’s not specific to lawyers.  If you hired a plumber, if you hired an electrician or you go to your doctor or an accountant – these are all service providers.  You hire them because they have certain expertise that you don’t.  At some point you will have to rely on that expertise, and you will have to vest your trust in that person. So, when you’re dealing with a lawyer, when you are talking to a lawyer to see if you want to hire that person, you must get an understanding from your own, you should ask the specific question to yourself: whether this is the person that you would like to trust and you will put your legal issues in his or her hands.  The other part that you want to keep in mind is that a good lawyer must be the right fit for you, and it’s important because oftentimes people think that once you hire a lawyer and you have given your problem to the lawyer, you are hands off,  the lawyer is now going to do everything that needs to be done, to get you what you want.  That’s not how it works.   Lawyering, and the fight in the legal action is a collaborative process.  There are a number of things that a lawyer will be needing from you.  He/She may be needing evidence, may require documentation or may require your input—your testimony.  It’s  collaborative work and if you are a right fit and the lawyer is a right fit for you then you will be more efficient and more productive.  It’s an important thing to keep in mind.

Recap:

With that background, what are some of the qualities that you must look for in a lawyer? 

We will suggest that your lawyer must have the expertise in that area.  This is an important one.  Let’s say you know a great criminal law lawyer who has helped you in your criminal matters and was very effective.  That does not mean that you should hire that lawyer for your employment law matter or vice versa because law is a specialized field like many other fields.  You will not ask your family doctor to do your gallbladder surgery because that’s not where his expertise lies.  Similarly, you should not ask a criminal lawyer to represent you in an employment law matter or   an employment law lawyer to represent you in your family law matter.  Expertise in that area of that specific legal issue is important. 

The lawyer must have integrity.  You should feel when you have met that lawyer that this lawyer will consider, will put your interest over and above his or her own interest.  Integrity is essential. 

Finally, the lawyer must be responsive. And I am using this responsiveness term in a broad sense—responsive to your questions, educating you on your issues, working with you in a timely manner and with a collaborative effort in achieving the goals of your issue.  These are all the things that the lawyer must be responsive to.  All of these qualities you must keep in mind when you’re engaging a lawyer. 

I want to leave you as conclusion with a quote that I recall from my Navy days.  This code was inscribed on the bridge of a ship that I used to work on.  It read as follows: “A Superior Sailor is one who uses his Superior Judgment to keep out of situations requiring the use of his Superior Skills.”  This applies to law as well and to a lawyer.  Your best lawyer is the one who has superior judgment and who uses that superior judgment to get you the results that you need—whether you need to go to trial or whether you need to settle.   That’s what you’re looking for

Hopefully, we provided you some insight about how to select a good lawyer and we look forward to your comments on the channel or send us an email or contact us.  Our contact information is provided here.  Thank you for watching.

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Welcome everyone this is Amer Mushtaq from YouCounsel.

Oftentimes people make assumptions about the nature of their employment relationship. Sometimes that assumption is correct.  Sometimes it’s not.  When that assumption is not correct, a lot of people potentially lose certain rights that they would have been entitled to otherwise.

This lecture we will elaborate on the difference—why the difference between these three categories employee, independent contractor and dependent contractor matters.   In the next lecture we’ll talk about how you determine which category you belong to, then who has the ultimate say, who has the power to decide what is the specific category of your employment relationship.   Before we begin, a disclaimer that this course is not legal advice.  If you have any specific questions about your issues you must contact your lawyer or paralegal and if you don’t know anyone directly you can contact the Law Society of Canada and Ontario and they can direct you to a lawyer or a paralegal.

The difference between these categories matters.  Why? Because under each category you will have different rights and under each category you will have different obligations.  Let’s start with employee rights.  The most important, well not the most important but one of the important rights falls under legislative rights—which means if there is a specific legislation that applies to your circumstances you may have rights under that.  A common example in Ontario is Employment Standards Act which applies to every employee—every non-unionized employee.  You have rights under the Employment Standards Act, then you have rights under common law—which is “judge-made” law and you may have rights under that.  A common example is termination notice which we’ll talk about in more detail but that could be your right under employment, under the employee rights category.  Let’s talk a little bit more about the legislative right and we’ll give you some examples.  Some rights are termination pay, overtime pay, public holiday, vacation, parental leave and employment insurance benefits—if you look at the Employment Standards Act.

Employment Standards Act is the legislation in Ontario for non unionized employees.  You scroll through and you will see there are a number of parts here that provide details of the kind of rights that you as an employee are entitled to.  For instance, hours of work and eating period in part 7, part 8 is about overtime pay, part 10 is about public holiday pay and vacation pay.  Look at part 14—leave of absence.  You will notice the kinds of leaves that an employee could be entitled to—pregnancy, parental, family, medical organ donor, family caregiver leave—all of these categories are leaves that are available to an employee.  If you are considered an employee, similarly, employment insurance benefits.  You may already be familiar with some of these benefits.  You could be entitled to illness benefits if you are ill and I believe they run up to 15 weeks or so, you have employment insurance benefits in the category of pregnancy and maternity and parental leave.  Then, of course, you have employment insurance benefits when you are terminated without cause and I believe they run up to about 10 months—depending upon where you live.  All of these rights are available.  These are legislated.

Another example could be workers compensation rights.  Workplace Safety and Insurance Act in Ontario covers rights for the employees who are injured at work.  You may be entitled to those rights if you are considered an employee.  Similarly, you have rights under common law.   I’ve given you the example of termination notice which is the most important one because if you are entitled to termination notice—depending upon the application of certain factors—you may be entitled to as high as 24 months or sometimes a little bit even more than that determination or severance pay.  Common law rights are important.  Employee obligations are the opposite or the other side of the coin (legislative obligations).  As we talked about it in the Employment Standards Act, hours of work is an example where you are required to work certain hours.  Production environment is a common example where, as you may know, factory workers are working on production lines.  They have to be on that line for a specific time.  Then there is a break after a certain time period which must be provided to them.  They are required to work those hours and then if required to work overtime hours, you are supposed to do that.  Those are some of the obligations under legislation similarly you have common law obligations—duty of loyalty towards your employer is one obligation, duty of confidentiality is another and there are many more other obligations that you have if you are considered an employee.

If you are not considered an employee and you are considered an independent contractor, what kind of rights do you have?  You have no legislative rights—that means the Employment Standards Act that we just talked about would not apply to you if you are an independent contractor.  You cannot go to the employer and say, “hey I’m entitled to 2 weeks of pay because the (ESA) Employment Standards Act says so.  Because you’re an independent contractor, similarly, you’re not entitled to paternity or you’re not entitled to overtime pay.  All of those things you are not entitled to.  What is it that you are entitled to if you’re an independent contractor? Your contract, your specific contract, that you have entered into with the employer, i.e., with the company that’s what prevails.  If the contract defines what your termination rights are or your resignation obligations are then those are your rights and those are your obligations.  If you are entitled to overtime, it will be specified in that contract.  It is very unlikely that you may be entitled to overtime in independent contractor arrangement because independent contractor as the name implies—you are quite independent of the employer or the company and usually they have no control over the kind of hours that you will work and when you will work those are usually left to the independent contractor.  Similarly, your wages will be defined in that contract and your vacation.  Anything and everything that is put in that contract is your right.  You don’t have the legislative right that we went through in detail or which applies to an employee.  Similarly you have no employment insurance benefits.  I mean, there are some exceptions but please understand that by default if you are considered an independent contractor you will not be entitled to any employment insurance benefits.  There are some exceptions and you can look them up in the Employment Insurance Act.   There are some cases where the independent contractor can remit certain payments for the E.I. and could be entitled to it but those are exceptions—those are not the norm.

Jumping on to dependent contractor.  Dependent contractor is sort of a category between the employee and the independent contractor.  What kind of rights and obligations do dependent contractors have?  Well, again, the dependent contractor has no legislative rights.  No rights under Employment Standards Act, no WSIB.  With respect to common law rights, here’s where it gets interesting.  A dependent contractor may be entitled to certain common law rights and in the case of termination notice for severance.  A dependent contractor may be entitled to that.  It’s an important thing to note that this is a category which looks much like an independent contractor but it’s not.  Again, with respect to employment insurance benefits, dependent contractor is not entitled to it but there are some exceptions which are similar to what an independent contractor category entails.   

Recap:

 Just talking about you know these categories, it is important to know which category you fall under because then you would know what kind of rights and obligations you have.  I’ll give you an example of one of my clients who contacted me some time ago.  He was in the movie production business.  He had his own company and he worked for one specific company and provided this production unit services.  He will go to the location and do all the setup and everything that he needed to do.  There was no supervisor looking after his work.  He will just go and do his work, invoice the company and then get paid. He knew from the outset and the company knew that he was not entitled to any benefits under Employment Standards Act.  He will have to negotiate his own vacation and time off.  The very key was in his understanding.  He had the impression that he was an independent contractor. He approached me for some other employment matter.  As I was interviewing him and I explored more about the nature of his employment relationship, I understood that it was not really an independent contractor but a dependent contractor relationship.  On the basis of that determination we were able to get him a significant amount of severance because he was a long service contractor—a dependent contractor for that company.  Understanding the difference between these categories is essential.  It’s important especially if you are terminated and you may not understand the kind of rights you may be entitled to or you make the assumption that you are an independent contractor and therefore not entitled to any of the rights—termination notice for instance.  So it is very important to make that distinction. 

In the next lecture you will learn how do you know whether you are an employee, whether you are an independent contractor or a dependent contractor we’ll talk about it and who decides?  Is it the employer that decides whether the nature of relationship is an employer/employee relationship?  Is it you the employee or the contractor who decides the nature of that relationship?  Is it Canada Revenue Agency?  Canada Revenue Agency has quite significant stake in the definition of how the nature of relationship is defined because on that basis they will get their taxes.  And finally whether it’s the courts that decide upon the nature of your relationship.  The answer is really it’s one and all.  Each one of them has a role, has some stake, has some rights in deciding the kind of relationship you are in.  But ultimately it’s the courts that will decide what is the nature of that relationship and to understand that please stay tuned for the next lecture we’ll talk about it and hopefully this basic concept was useful, understandable. 

If it’s not clear or if any if you have any questions or comments, please contact us.  If you require any specific consultation about your issues you can contact us through Clarity or directly through our firm, Formative Law.  Look forward to talking to you in the next lecture.  Thank-you.

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Welcome everyone.  This is Amer Mushtaq from YouCounsel. 

Today we’ll talk about choosing the appropriate court or tribunal or judicial body when you believe that you have been wrongfully dismissed from your employment and you have a case against your employer.  Before we begin, just a quick disclaimer that this course is not legal advice.  If you have any specific questions about your issue you must contact your lawyer or paralegal.  If you don’t know one, we have provided the link here for the Law Society of Upper Canada, who can refer you to someone.

So you are an employee who has been working in Ontario.  You have been wrongfully dismissed.  You believe that you have a case against your employer.  Then where do you go? 

This lecture is really directed towards people who have been living in Ontario.  The principles are not much different in other provinces.  The only thing you have to watch for is the specific employment related legislation in your province and how does that apply.  You may want to listen to this lecture, get the basic principles and then review the specific legislation in your province.  But the examples we’re giving here are relating to Ontario legislation.

Why is this important?  It’s a fundamental issue.  Why is it a fundamental issue?  Because if you end up choosing the wrong Court, it could have significant negative consequences towards the outcome of your case.  One of the consequences could be that your case may simply get thrown out.  You fight your case all the way and you’re before the judge.  At that time you may realize and the judge will point out that he or she does not have any jurisdiction—meaning does not have the power to give you what you’re asking.  You have wasted significant time and money to fight or pursue the case in that specific court.

The other factor to keep in mind is additional cost: of course the time and the cost.  If you are in the wrong court and let’s say you have the opportunity to withdraw the Claim from that Court and go to the right one.  By that time you have incurred some costs that you cannot recover and of course you have lost time.  Another thing that can happen is that you may not, if you end up in the wrong Court i.e., the wrong setting /wrong judicial body, you may lose the opportunity to get out of there and go to the right one.  You may be stuck in that specific jurisdiction where you have commenced a court action and it could have significantly grave consequences if that’s the case.  We will explain that to you by way of an example further down the line. 

Let me give this point a meaning.  Let’s look at the Employment Standards Act.  I hold it out here already this is the legislation that applies to Ontario employees called Employment Standards Act.  You can google it.  When you find it, you scroll down to Section 97.  Right here sub (1) “An employee who files a complaint under this Act with respect to an alleged failure to pay wages or comply with Part XIII (Benefit Plans) may not commence a civil proceeding with respect to the same matter.”  An employee files a complaint under so it’s exactly saying what I just said that if you have filed a complaint under the Employment Standards Act, then you cannot go to court (a civil proceeding is going to court), you cannot go to court.  You have the choice of either this or going to the court.  Here is the part that I want you to look at more closely, subsection (4) “Withdrawal of complaint – Despite subsections (1) and (2), an employee who has filed a complaint may commence a civil proceeding with respect to a matter described in those subsections if he or she withdraws the complaint within two weeks after it is filed.”

It is very clear that once you file a complaint with the Ministry of Labour you literally have the window of two weeks to withdraw that complaint.  If you don’t withdraw it, in case when you realize that you have to go to court and not to the Ministry of Labour, then you literally have two weeks to withdraw it.  If you don’t withdraw it then you are stuck with the jurisdiction of the Employment Standards Act.  As I said we’ll explain to you how massive this issue could be once we cover an example.  No opportunity to go to another court.  And if you end up in the wrong court or the wrong judicial body there may be situations where your damages could be significantly less.  There’s a lot to lose if you choose the right the wrong court or judicial body.  It’s an important issue that you need to deal with at the outset of your case—before you actually even go and file your complaint with a court.

Here are some scenarios that we’ll cover today—if you are a unionized employee or non-union employee where do you go to?  Whether you go to Court or the Ministry of Labour – that’s another topic we’ll cover here – whether you go to court or Human Rights Tribunal Of Ontario (HRTO), whether you go to the CLC (CLC essentially means Canada Labour Code—a legislation just like the Employment Standards Act that I showed you.  You can look it up online Canada Labour Code versus Court or Tribunal or Ministry of Labour.  Then the issue about choosing between Ontario Human Rights Tribunal versus Canada Human Rights Commission and Small Claims Court versus Superior Court.  We’ll cover these topics.

If you are a unionized employee, very important to keep in mind, the only place and the only process that is open to you if you are terminated is called arbitral process.  It’s through the union.  You cannot commence it through your own private lawyer.  What you do is—through your union you file what’s called a grievance.  That’s why this process is also called grievance arbitration.  You file a grievance through your Union against your employer.  It goes through the arbitration process.  You do not have (as a unionized employee) to go to court, to go to another tribunal, a judicial body or even to the Labour Board.  The only option you have is grievance arbitration.   I am emphasizing this because a lot of times we get calls from unionized employees who call us and who want us as private lawyers to get involved in their issues.  We advise them that we cannot—they must go through their Union for their representation.  Quite frankly, that’s why they have been paying their union dues so that they could get representation through Union lawyers. 

But there are exceptions.  The only exception you have is, if you have a human rights case.  If you believe that you have been discriminated against and you want to bring a complaint with the Human Rights Tribunal, you have the option to retain your own lawyer or paralegal and file a complaint with the Human Rights Tribunal or you can do the grievance arbitration.  You can’t do both.  Keep that in mind—you have the choice of either doing grievance arbitration or going to the Human Rights Tribunal if you have a discrimination case.  You cannot do both.  If you have filed a grievance and you want to go to the tribunal you have to first withdraw the grievance.  There have to be certain consequences to that withdrawal—how far it is in the grievance process.  Similarly, if you have filed the human rights complaint and it’s being processed, you may not have the option to then file the grievance.  It’s one of the two.  This brings me to the next point that there is no option of having duplicitous proceedings (what that means, is you can’t take two shots—two kicks at a can).  You can’t go to the tribunal and maybe unsuccessful with your case and then you decide that you want to go to the grievance process.  You don’t have that opportunity.

There is another exception, which is called DFR Applications.  DFR stands for Duty of Fair Representation.  This is a basic duty that a union has towards its union members, i.e., to fairly represent them.  If you are a unionized employee and you believe that your union is not fairly representing you then you can bring a DFR application in front of the Labour Board.  That’s a separate topic but that’s another exception that you can have.  The key to remember is that if you’re a unionized employee, the arbitral process is the one that’s open to you—the only exception is really a human rights complaint but you cannot go to court.

Let’s go to the topic number 2 which is choosing between the Court and the Ministry of Labour.  This is an issue that is very common.  We see this all the time.  What happens is, an employee gets terminated.  They go online and Google the topics.  From their research they find out that they have access to the Ministry of Labour—where they can file their complaint and they believe that they will save time and money by going to Ministry of Labour and have them deal with this matter.   Actually, in 99% of the cases it is not worthwhile to go to Ministry of Labour for wrongful dismissal issues.  You may be better off going to court because the remedies that are in court are a lot more than what the Ministry of Labour can give you, especially with respect to termination. 

Why is that ?  Because the jurisdiction or the power of the Ministry of Labour is literally what is prescribed under the Employment Standards Act.   This is the legislation.  The four corners of this legislation decide what a Ministry of Labour Employment Standards Officer can and cannot do.  The Ministry of Labour does not have common law remedies i.e., it does not have the power or common law remedies.  A lot of technical information here.  But what does this all mean?  Let’s look at an example – say you’re an employee who made $60,000 per annum.  You worked for your company for about, let’s say, 20 years and you got terminated.  If you go to the Ministry of Labour and file an Employment Standards Act complaint then the termination pay you will be entitled to—if you’re successful—is 8 weeks of pay, which let’s say is approximately $10,000.  If you have a case and in court for common law rights which may be the situation in your case then you could be entitled to as high as two years of pay which is about $120,000.  You can see that by choosing to go to Ministry of Labour and not going to court you may end up losing $110,000.  This is just an example to give you a sense of how significant the difference is in terms of what you choose—which court or which body you choose.  This is a significant amount of money.  And that’s what you may end up losing if you incorrectly choose the Ministry of Labour route as opposed to going to court.  We have experienced this issue a lot in our practice.  We know that a lot of people make this mistake.  They end up making a complaint with Ministry of Labour and then as you know, you have literally two weeks to withdraw that complaint—they realize after 1 or 1.5 months, that the process is too complicated and they need a lawyers assistance.  They contact us or any employment lawyer.  It is at that time they realise that they have lost the window of opportunity to go and file a case in court and are obviously losing significant remedies.  It is very important at the outset to figure out whether Ministry of Labour is the right place for you to go to or you should be going to court.  That’s a consideration to have at the time of termination.

Another example is for employees whose employers are federally regulated.  If you work for a federally regulated employer, then you are governed by the Canada Labour Code not Employment Standards Act.  Under the Canada Labour Code there is a specific term that’s called “unjust dismissal” and unjust dismissal is not equal to wrongful dismissal.  These are two different concepts.  Unjust dismissal has a specific meaning.  If you are a federally regulated employee you have to be careful whether (you can certainly file a wrongful dismissal complaint or a court action) you qualify for unjust dismissal complaint under the Canada Labour Code which will be filed with the federal employment standards branch.  One of the things that you have to consider is: you have to be a non managerial employee, i.e., you cannot be a manager and seek to file a complaint for unjust dismissal.  The advantage of unjust dismissal complaint is that you have a right to reinstatement.  If the decision is in your favor, you can get your job back—which is not something you could get ordinarily in court.  The court does not award jobs back.  It just gives you damages.  You can also get loss of the income award which could be much more significant than what you can get in court.  This is one situation where you may get better results than in court by filing a complaint under Canada Labour Code.  This is something for federally regulated employees to consider before they decide which body /which court they want to go to. Under Canada Labour Code (if you google it and look it up) currently you have 60 days from the time you are dismissed or you are terminated to actually file a complaint under Canada Labour Code.  If you have missed that 60 days opportunity then you won’t be able to do that—again something to consider seriously.

If you have a case for discrimination under the Human Rights Code or the Human Rights Act, depending upon whether your employer is federal or provincial you will go to either the Tribunal in Ontario or to the Canadian Human Rights Commission.  If your employer is federally regulated then you go to the Canada Human Rights Commission.  If it’s provincially regulated, then you go to the Human Rights Tribunal of Ontario.  The two have different legislation.  They have different processes and different remedies.  You have to be careful which body you go to with respect to your discrimination case. 

Another thing to consider is Small Claims Court.  The Small Claims Court in Ontario has the jurisdiction to award damages of up to $25,000.  If you believe your case is less than or equal to $25,000, then you can go to the Small Claims Court.  If it is more than $25,000 then you want to go to Superior Court of Justice. 

Another factor to consider is the kind of claims you have.  When your lawyer is considering—it’s not only the wrongful dismissal but he or she will consider if there are damages for any bad faith conduct or discrimination issues which can get tagged along and then the total damages may be much higher than $25,000.  You may be better off going to Superior Court.   Something to consider in choosing whether you want to go to small claims court or Superior Court for your wrongful dismissal.

Recap:

We’ve covered a lot of topics in this lecture and the reason why I wanted to touch upon all of these was that I at least wanted you to take away the 30,000 feet view that if you are dismissed and you are considering a court action or filing a complaint of some kind, you must at the outset decide where and what is the appropriate forum that you want to go to.  If you’re not clear yourself about it, this may be a time to go seek legal advice or a consultation with an employment lawyer. In my practice I have seen lawyers who do not practice employment law—let’s say the commercial litigator or someone who infrequently practices employment law—they don’t have a clear understanding of choosing the right forum.  This can have significant consequences for their clients.  It’s nothing that you cannot understand—it’s unfortunately that that’s how the processes are set up and they’re a bit complicated.  You have got to untangle those before you choose the right forum.  Keep that in mind—if you are wrongfully dismissed then you want to decide on the appropriate forum before you proceed and not after you have commenced the process because then that may be a bit too late.  Hopefully, this was useful.

If you have any comments, please do send us an email if you require consultation on any of these issues by means book a consultation through Clarity or feel free to contact us through our law firm and we will be happy to assist you.  Thank you and we look forward to seeing you in our next video.

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Machine Transcription:

Hello everyone welcome to lecture three issuing a claim in Small Claims Court in four steps and this lecture is Step 1, Part 1. 

Let’s look at all four steps. Step 1: you will complete the Plaintiff’s Claim form which is form 7A. Step 2: you will gather all the evidence that you need to support your claim.  You will attach it to Form 7A. Step 3: you will visit the Small Claims Court office where you are required to issue your Claim and Step 4: you will serve the Issued Claim on the Defendant.

Once you have completed all the four steps then it is the Defendant’s job to file and serve its defense within the time period that is prescribed by the Court.

Step 1: you have to fill out Form 7A.  You can download this form.  I have provided the link here (http://ontariocourtforms.on.ca/en/rules-of-the-small-claims-court-forms/) and it’s also in the teachers notes. You can go to this website and it has all of the forms that relate to Small Claims Court. Let me see if I can show you these forms. If you go to this website you will see a page like this: Rules of the Small Claims Court forms and if you download and scroll down you will see all of these forms And here is our Form 7A which is Plaintiff’s Claim.  This is the the most recent one.  It is available in PDF where you can view it but if you want to fill out the information electronically then you download the word form. Let’s click on word.  It opens up the form and voila! this is what the form looks like. Let me see if I can show you the whole page. If you look at this form—this is page one. You really can’t read anything but I will take you to each section of this form. Page 1, Page 2 and Page 3.  There are only three pages in this form You can download it and can you see these gray areas? That’s where you can input information. You can electronically fill this form out and save it or you can print it and handwrite the information.

We are on page 1 of Form 7A. Let us start on the top right corner of the Plaintiffs claim. It says Claim number you do not need to put in anything here it is not very clear from the form but this space is for the Court to put the information about your Court file number. Your unique Court file number comes in here and the Court’s clerk will fill that information. What you do need to fill out is this section where it says Small Claims Court.  Over here you write down whichever Small Claims Court office you are issuing your Claims. If you are in Toronto then you write Toronto Small Claims Court here.  If you are in Burlington or Richmond Hill or any other Small Claims Court you write that down here. In the second part you write down the Court’s address and phone number.

Further down you see Plaintiff’s Information. If you are the Plaintiff, then this is your information.  If you are the only Plaintiff, then obviously it’s one person’s information. If you are more than one Plaintiff, then you check this box here where it says Additional Plaintiffs listed on attached Form 1A.  This Form 1A you can again download from the same website I showed you.  All it does is it gives you the space to write down the names for additional Plaintiffs or Defendants. If any of the Plaintiffs is under 18 you check this box over here. Last name of the Plaintiff, first name of the Plaintiff—if it is an individual. If it is a company, you write the company’s full name here.  If there are aliases or other names you write that down here.

To give you an example, let’s say your name is James Smith but you are also known as Jim Smith, you may want to write that down here in the “Also Known As” space. Put in the information for your address: city, town, province, phone number and if you have a fax number put that information also. Put in your postal code. This information is for your representative.  If you have a lawyer or paralegal representing you, then his or her name and the name of the firm comes here. LSUC number is the Law Society of Upper Canada number.  It is issued to every licensed lawyer or paralegal.  That information goes here. As you are taking this course you will not need to hire a lawyer or a paralegal to represent you.  This section you will then be leaving blank. No representative as you are managing this case all by yourself.

Important thing to keep in mind: who is the Plaintiff? In most cases it is very obvious who the Plaintiff is.  If you are the individual and you

have been wronged by the Defendant i.e., the person you are claiming against, then you are the Plaintiff and you put your name down—the correct legal name.

In some cases, you know it could be a company.  You may have hired someone on behalf of your company.  If that is the case, then your company is the Plaintiff not you. One of the ways to figure that out: is there is a written contract for those services or for whatever reason you’re suing.  If there is something in writing, you want to see who are the parties to that written agreement.  If you have signed the agreement in your personal capacity, then you are the individual who can bring a claim.  If you have signed it as a representative of a company then that company is really the Plaintiff.  In some instances, there could be multiple Plaintiffs.

For example., you hired a plumbing company to do some repair work in your house.  The house is owned jointly by you and your spouse.  You have both hired the plumbing company. Then both of you could be Plaintiffs.  This is something to pause and give a moment of thought: who is the correct Plaintiff?  You want to make sure that you put the right Plaintiff’s name in here because if you put in the incorrect Plaintiff the person would not have any claim against the Defendant because that person is not the right party.  You do not want to waste your time and energy in a claim for which that person is not a party.  Therefore, getting the Plaintiff’s name correct is important.

Underneath the Plaintiff’s name we have the section for Defendant’s name. Same kind of boxes except that this is for the Defendant’s information.  You put in the Defendant’s name here.  If there is more than one Defendant, you get the additional Defendants form 1A and put that information there.  By the way, the Form 1A goes behind the first page so first page is page 1 and then behind that you put in form 1A, which will now be the page 2 of your claim.

If any of the Defendants is under 18 you put that down here. Last name if it is an individual is here. If it is a company, you put the full name here.  First name, “Also known as” aliases you put that information here. Address: city, province, phone and fax (if available) number and postal code.

This is information for the Defendant’s representative a lawyer or a paralegal.  In most cases if you’re issuing a claim you would not know whether the Defendant is being represented and, if there is a representative, what their name and address is.  In most cases this information will be left blank.  Nothing here in representative LSUC number, address—none of that.  You will leave the section blank.  What is the important thing to keep in mind for the Defendant is that you need to know the exact name of the Defendant.  This is very, very important.  If you get a judgment against the Defendant and you have the wrong name, then you have to go and enforce that judgment against that wrong named Defendant which may not exist right.  Therefore, it is essential that you get the name right.

Some of the things to keep in mind is that if it’s a company: then is it a corporation, or is it a sole proprietorship?  You want to get the exact name.  If it’s a company, I’ve given three examples: (1) ABC Ontario Inc. and you see how Inc. is written here.  If that is the name you want to make sure you write it down in that way. (2) If it is ABC Ontario Incorporated (in the second example) – this one, then you want to make sure that you write that down correctly. Let’s see if it’s ABC Ontario Limited then you want to make sure that you write that down correctly.  Correct name of the Defendant is very important.

The Defendant may have multiple names so another example could be that the legal name is indeed ABC Ontario Inc. but the company may be carrying out business as ABC Plumbing, then you want to name ABC plumbing as a Defendant.  You want to make sure that you cover all possible names of that Defendant so that you are able to enforce the judgment if you need to at a later stage.

If there are multiple Defendants, by all means, write all of the Defendants names in the Defendants section.  You want to make sure that you cover as many Defendants who are obligated to make you the payment or the claim.  Get that down—it is very important to get the Defendants name right and you want to make sure that you do that.

Recap:

• you choose the right Court office: you know how to do that we taught you—you go to that Court office and you put that information there
• then you want to make sure that you have the correct /the right name of the Plaintiff or Plaintiffs and
• right name off the Defendant or Defendants

In the next lecture we will go to page 2 of Form 7A which talks about the reasons why you are issuing this claim, what happened, what is your story and we will tell you the best way how to write that down so that it is reasonable and it makes sense to a judge or a reader.  We will talk about that in the next lecture and if you have any questions or comments about this lecture by all means please send us your feedback by email or call us.  

Please bear in mind that we tend to provide additional information and teachers notes which is not required for the purposes of this lecture but that is additional information for your knowledge. Please check out the teachers notes for additional information and I look forward to seeing you in the next lecture thank you.

Show Notes:

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Machine Transcription:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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