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Welcome everyone this is Amer Mushtaq from YouCounsel.

When you have to commence a court action in the Superior Court of Justice in Ontario, you have to take specific steps to get into the court system and commence your court action.  We have a separate lecture on a summary of those steps and what those steps are.  One of those steps is to complete a form which is called the Information For Court Use Form.   In this lecture, I will explain to you what this form is—how do you complete it and what do you do with that.  We begin with a disclaimer that this course is not legal advice.  If you have any specific questions you must contact a lawyer or a paralegal.

In the previous lecture we started with an example and will continue with that.  The example was Mary loaned $100,000 to John.  John has refused to pay back and Mary needs the court’s help to get her money back or get a court order against John, so she can enforce that judgment against John.   Assuming that you are Mary and you need to commence this court action, how do you get into the court system?  In our previous lecture we explained that there are two legislations that are the most relevant ones (1) the Courts of Justice Act and (2) the Rules of Civil Procedure.  The Rules of Civil Procedure is the one that you need to follow to get into the court system and move your case all the way through to Trial and beyond.  You need to know all of these Rules. We had also explained in the first lecture that there are three steps to commence the court action.  You have to complete the Information for Court Use Form, you have to complete a Statement of Claim and you have to pay certain court fees.  For all of these details please review the lecture on “Commencing a Court Action”.

Now, with respect to steps for completing the Information For Court Use Form, your first step is obviously to get the form.  You can go to Google and can find that the forms are available for free.  Type in Rules of Civil Procedure forms.  That will take you to the government link which provides all of the forms that are related to Rules of Civil Procedure and we know that Form 14F is the one that deals with Information For Court Use.  That’s the form.  Here you can download it as a pdf or as a Word document.  We will open it as a Word document.  Once you have downloaded the form the next step is really to complete the form.  Most of the information is already in here. 

The first thing you have to type in (put the information in) is where it says “(General Heading)” that is where your information and the defendant’s information comes in. Let’s say, Mary Kozner is the plaintiff.  You type in her name:

            Mary Kozner, plaintiff

                        vs.

               John Smith, defendant  

That’s the information court needs to know who is the plaintiff and who is the defendant.  You put that information in there.  Moving down to question number one the court asks—this proceeding is either an action or an application:

This proceeding is an: [√ ] action     [ ] application

And we have a separate lecture on the difference between an action and an application.  If you don’t know please check that lecture out.  For the purposes of this lecture we’re assuming that this is a court action and so you just check this box for the court action.

Question number two:

Has it been commenced under the Class Proceedings Act, 1992?

[ ] yes       [√ ] no

If this action is a class action? But if you are individually issuing it and it’s not a class action then the answer is no.  You check that box.

Then the third question which is quite important is that if the proceeding is an action, which it is, does Rule 76 (simplified procedure) apply?  What is this Rule 76?  We will have a separate lecture on it but briefly speaking you can read here that:

“Subject to the exceptions found in subrule 76.01(1), it is MANDATORY to proceed under Rule 76 for all cases in which the money amount claimed or the value of real or personal property claimed is $100,000 or less.”

Mary is claiming $100,000.  Let’s check this box because we want it to be commenced under Simplified Rules,  Rule 76.  

Scrolling down to the fourth question, I will make it a bit bigger so you can see it better.  Question number four says:

4. The claim in this proceeding (action or application) is in respect of:

Note:  Subject to the exceptions found in subrule 76.01(1), it is MANDATORY to proceed under Rule 76 for all cases in which the money amount claimed or the value of real or personal property claimed is $100,000 or less.

What kind of claim is it? Is it relating to bankruptcy, collection of debt, constitutional law, construction law, so on and so forth. There are some general categories and these are just for the course statistics.  You pick one that is the best category that you believe your case relates to.  In this case it’s a collection of debt.  You check this box.

            Collection of liquidated debt               [√  ]

If your case is about something else then you check that box. 

All four questions are answered.  You print this form and then you sign here and you put the date here.

CERTIFICATION

I certify that the above information is correct, to the best of my knowledge.

Once you have done that then your form is ready.  You have downloaded the form; you have completed the form, you print one copy sign and date and you have completed the steps.  Your Information For Court Use Form is now ready.  You take one copy with you to the court office, you take two copies of the Statement of Claim and you take the fees.  The court office will keep the Information For Court Use Form for its own records.  This is for the courts knowledge—what kinds of claims are being filed in the court and then also what kind of court file numbers are provided to your file.  Information For Court Use Form is done.  A brief review of the Rules.  You want to check the Rules of Civil Procedure and the information that we have provided here is mostly in Rules 14.01(1), 14.02 and 14.03.

Hopefully this gives you a very clear understanding of how you complete this Information For Court Use Form. It’s not complicated as long as you know the answers to the question that I just talked about.  You can complete it easily.  Hopefully this helps you understand this first step in commencing a court action.  In the next lecture we will talk about how you draft a statement of claim and what is a statement of claim about.  It will help you understand that concept so you can understand Step 2 of the process of commencing a court action.  If you have any questions about what we talked today or generally about the Rules of Civil Procedure or any other legal topic, please contact us.  Put it in comments box on youtube, send us an e-mail or reach out to us through any of these channels and we’ll be happy to add more information in future lectures.

Thank-you for watching.

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Machine Transcription:

Welcome everyone this is Amer Mushtaq from YouCounsel.

In today’s lecture we will talk about three basic steps that you need to take in order to start / commence your civil court action in Ontario, in the Superior Court of Justice.  We will talk about the very first step in the whole civil action process which is the commencement of your court action.  What is it that you need to do to get inside the court system? We commence always with the disclaimer that this course is not legal advice.  It’s purely for legal knowledge.  If you have any specific questions about your issues you must contact a lawyer or a paralegal.

Step 1: We will explain this process the commencement of the court action with an example.  Let’s say Mary loaned $100,000 to John.  John then refused to pay that money back.  Let’s say he was required to pay that back within a year’s time.  He has not returned that money and Mary is at a stage where she needs the court’s help—she needs to get a court order against John so that she can get her money back.  If that’s the example, what is it that Mary needs to do to enter the court system?  Mary needs to follow a certain process to actually go and eventually tell a judge that John has done this wrong against her and she needs some remedy from the court system.  How does she even enter the court system?—that is the subject of today’s lecture.  (a) First thing Mary needs to understand is that there are basically two legislation that are relevant to her case (there are more or there could be more) but the fundamental ones are the Courts of Justice Act and then underneath the Courts of Justice Act there are regulations called Rules of Civil Procedure.  If you have followed our previous lecture, we have talked about Rules of Civil Procedure in many other lectures.  If you want to learn more about the Rules generally, and listen to those lectures check those lectures out and you will get a better understanding of the framework of these Rules.  For the purpose of today, what you want to understand is that Rules of Civil Procedure provide the mechanism which Mary has to follow to enter into the court system in Ontario and Superior Court of Justice.  That mechanism (those Rules) will guide her all the way to Trial and how she gets a judgment against John.  It is fundamental for Mary to follow these Rules, understand them, abide by them and when the circumstances require to go around those Rules and she has to lawfully do that.  Both the Courts of Justice Act and the Rules of Civil Procedure are available online for free.  All you have to do is type into Google “Rules of Civil Procedure, Ontario” and you will find those Rules.  (b) What are the steps that Mary needs to undertake to even start the court action?  She has to fill out certain forms.  Form 1 that she has to fill out is called the Information for Court Use form.  Second document that she has to prepare is called the Statement of Claim. There’s also a form for that. The third thing she has to do is, she has to provide the court with certain fees for the court to allow the commencement of her court action.  Those are simply the three basic steps that Mary needs to do and then her court action will commence.  She will get the Information for Court Use form fill that out; then she will prepare her Statement of Claim.  A Statement of Claim basically is a document in which Mary is putting her story—her version of the facts in writing telling the court what remedy she wants and why does she want it.  It’s as simple as that.  What is it that she wants the court to do in this case?  She wants the court to award $100,000 against John—that is what she wants.  Then obviously she wants her costs because she is incurring some cost to get all the way through the trial and so she will ask the court for those costs.  She may ask the court for interest on the payment—from the time that it was due.  That’s what she wants. She wants from the court judgment against John and why does she want it? She has her own story and her story will be that “on such and such date I gave a loan of this money to John.  John was supposed to return it on so and so date.  He has refused to do.”  We will in a separate lecture talk about filling out of the Information for Court Use form and the Statement of Claim.  In this lecture we are basically telling you the three steps and then will go over each step separately at least the first two steps, the third part is rather easy.

The question will arise that where do you find these court forms?  The answer is they are also available online.  You type in “Rules of Civil Procedure forms” in Google and you will see that the Ontario Government has made these forms available online. All of the forms that relate to the Rules of Civil Procedure are here on this website.  You can click on the word format and you will have that document open.  You can fill it out as you need to. What about the fees? Where do you find the fees? Again you go back to Google and you type in “court fees, Ontario”.  You will see this—Regulation (O. Reg. 293/92) Superior Court of Justice and Court of Appeal Fees.  In this Regulation the government has laid out what are the fees for what.  Stop.  When you scroll down and read:

Section 1. The following fees are payable, except in respect of proceedings to which section 1.2 applies:

      1.  On the issue of the following:

             (i) A statement of claim, notice of action or notice of application, $220.

Essentially, if Mary is commencing a court action which is through a statement of claim or through a notice of action, then she will be paying the court $220.  She can take a money order, I believe she can pay by Interac or by credit card at the court office.  Mary has to go physically to the court office depending upon which municipality she lives in.  If it’s in Toronto, then she goes to 393 University Avenue on the 10^th floor, lines up, carries one copy of the Information for Court Use Forms; carries two copies of the statement of claim that she has printed and then provides that money (fees).  What the court will do is they will keep the Information for Court Use form in the court system. They will issue a court file number for her statement of claim.  The Registrar at the window will actually physically write down the court file number on the Statement of Claim, put a stamp on the face of the statement of claim (on the very first page is a red color stamp), sign the statement of claim and then enter a date of the issuance of the claim.  Those are the four things that the registrar will do: entering in the system, put a stamp, give the court file number and sign it.  It takes five steps—and hands back the statement of claim, which is now issued from the court, to Mary.  Mary has to take certain steps: she has to go and serve that statement of claim on John.  At this point once the statement of claim is stamped and issued, has a court file number, signed by the registrar and dated—then her claim is issued.  She is now in the court system.

Okay, all of this information that I’ve given you is from the Rules of Civil Procedure.  My role here is to simplify things for you so you don’t need to directly go and decipher it from the Rules but I do want to tell you which Rules I had looked into so you can understand where all of this is coming from. Rules of Civil Procedure is the guiding rule book, the guiding rules.  Then we went through Rule 14 and Rules 14.01(1), 14.02 and 14.03. Let me quickly go through those Rules.  I can briefly tell you what those Rules say but the essence I have already provided that to you.  For Rules of Civil Procedure go to CanLii website.  And then if we scroll down to—we are talking about Rule 14, let’s go to the Table of Contents and scroll down to Commencement of Proceeding—which is the Rule and I have spoken about Rule 14—let us go down to Rule 14 and see what it says.  Rule 14 is titled Originating Process. Originating Process is actually the process when you commence the court action or an application—that is the starting (originating) process that’s what’s called originating process. 

Rule 14.01(1) says, “A proceeding shall be commenced by the issuing of an originating process.”

OK we get that.  If you scroll down, we’re talking about the Commencement of Proceeding by way of a court action.  What you want to know is in Rule 14.02 which says, “Every proceeding in the court shall be by an action…”—there is an action and there’s an application. Those are two different things and we have a separate lecture already available.  You can check that out. It says that” “Every proceeding in the court shall be by an action, except where a statute or these rules provide otherwise.”  And that’s where our other lecture explains what an application is.  Scrolling down you see that you can start a court action by statement of claim or notice of action  What I’m emphasizing or I’m advising you today is about commencing a court action through a statement of claim.  But you can also, and this is provided in 14.03. If you scroll down it tells you what a notice of action is.  You commence a proceeding with a notice of action only when there is insufficient time to prepare a full statement of claim and you’re in a time crunch.  You want to get to the court and file your notice of action. You file a very brief story, commence a notice of action and then within 30 days you have to prepare a statement of claim and serve it.  If you scroll down further, it talks about Information for Court Use form.  It actually tells you that Form 14F is the Information for Court Use form and what you have to do with that.

Those are the Rules for your learning.  If you want to read them in more detail, I have provided you with the link. The basic concept—that you have 3 steps to follow.  1. Prepare the Information for Court Use form; 2. Prepare two copies of the Statement of Claim.  Carry all these things along with 3. $220 (either in money order or you can pay by credit card or interac at the court office) and hand over to the Registrar.  The Registrar will review it briefly to make sure that the formality of those documents is correct.  The Registrar is not going to read the contents.  The main thing the Registrar will look at is to make sure that the case belongs to Ontario—you don’t live in British Columbia and John doesn’t live in British Columbia or elsewhere.  The facts of the case, i.e., the issues that are in dispute, really relate to Ontario.  That’s the main thing—that is the main concern.  If it does relate to Ontario, then you’re good to go.  The registrar will put a stamp, add a court file number, sign it put a date and give you back one copy and keep a copy of the claim and the Information for Court Use form for the courts own system.

Hopefully, this explains to you the very, very first step—this is how you actually get into the court system and Superior Court of Justice.  We will take further steps and explain the next process.  We will soon have a lecture on and how to fill out the Information for Court Use form, what is that for, what is the form about, etc. Similarly, we will have a lecture on drafting a statement of claim. 

If you have any questions about what we have discussed today please contact us.  Put your comments on YouTube.  They are very helpful.  Send us an email or contact us in the ways that are listed here.  We will be happy to add more information in future lectures. Thank-you for watching.

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Welcome everyone this is Amer Mushtaq from YouCounsel.  

Today we will talk about Civil Actions in Ontario.  These are court actions that you commence in the Superior Court of Justice in Ontario.  We will talk about 6 basic steps that are commonly taken in the proceedings of these civil actions.  The lecture is really designed for people who have no legal background—so they can understand the fundamental steps in a civil action in Ontario.  As always we will commence with a disclaimer that this course is not legal advice.  If you have any specific questions about your issues, you must contact a lawyer or a paralegal.

Civil actions in Ontario are governed by specific legislation.  There are two legislations that you want to keep in mind—those are your starting point.  If you are going to research the procedure for a civil action in Ontario the larger legislation is the Courts of Justice Act and underneath that are the Rules of Civil Procedure.  These are regulations under the Court of Justice Act.  Both these legislations are available online.  You can go on Google and type in Rules of Civil Procedure.  CanLii is one website but they’re also available on the government website and you can check those out. I want to show you a few things about the Rules of Civil Procedure so you can understand the layout a bit better.  Let’s scroll down to the Table of Content.  You will notice that there are a total of 77 Rules.  Each Rule has a number of sections.  There are a lot of sections.  In other words, there are a lot of Rules that you need to keep in mind depending upon the circumstances of your court action.  The way these Rules are laid out: they are in different parts or you may call them chapters and they start from: General Matters; Parties and Joinder; Commencement of Proceeding so on and so forth. What I want you to pay attention at this stage is that unfortunately the Rules are not laid out in a way that a person who is not a lawyer or a paralegal can easily decipher.  What I mean by this, is that if you want to understand what is the process, what are the steps to commence a court action, it doesn’t lay out the Rules in that manner.  You don’t see here Chapter 1: Commencement of court action and then you have to take the following steps. It is laid out in somewhat of a sequential manner but not necessarily for people with no legal background in mind.  What I’ve done in this lecture is to summarize some of the Rules, taken them out of their sequence in the Rules and then will explain to you the process.  Each section, each step that I’ll be talking about it may be referring to a different chapter but the overall concept is that you have an overview of how these court actions are commenced and how these court actions are concluded in a civil action in Ontario.

Let’s begin with the 6 Steps.  Step 1: is obviously Pleadings; I’ll explain what that is.  Step 2: is Affidavit of Documents; Step 3: is Discovery process; Step 4: is Mediation; Step 5: is the Pretrial—and the last and the final—Step 6: is the Trial.

Step1:  What are Pleadings?  Pleadings are the documents in which each party lays out their version of facts about the issue.  A party that commences a court action, will start their court action by filing and serving a document which is called a Statement of Claim.  A statement of claim essentially is, if you are the claimant, if you are the plaintiff, if you are the party who is commencing this court action.  Statement of Claim has 2 components.  1^st component: What is it that you are asking the court to do for you? Are you asking for money? Are you asking for return of property? What is it that you want the court to do?  The 2^nd component: is what are the facts that you are relying on? What is your story? Why the court should give you what you’re asking? Those two elements are the fundamental elements of a Statement of Claim: what is it you’re asking and why are you asking this; what is your story. In response the defendant will serve and file what’s called a Statement of Defence and this Statement of Defence will contain the defendant’s story: what they are asking the court to do?  Are they asking the court to dismiss the plaintiff’s claim; to throw it out; to reject it and what is their version of the story; why do they believe that the court should not award the plaintiff (the claimant) what he or she is asking for.  There are different kinds of pleadings. In some circumstances the plaintiff may again file a Reply to the Statement of Defence.  There are specific circumstances in which your Reply can be filed and must be filed.  When we get to each element of the pleadings in different lectures I will explain to you when a Reply is served and filed.  Pleadings are also counterclaims.  If the defendant has a claim against the plaintiff, then the defendant can issue what’s called a counterclaim and explain or ask the court what is it that they want the court to award against the plaintiff.  One more kind of pleading is Third Party Claim.  In this situation if a claimant or a plaintiff has sued the defendant and defendant believes that it’s not them who are responsible for those monies or for those damages but it’s a third party who should pay for those damages because they are the ones responsible and they want to bring that third party into that court action, then they will bring what’s called a Third Party Claim.  That’s how the third party claim will be issued.  Pleadings is really the first step in which all the parties are laying out their position/their facts for the court, for the judge.  They are explaining their side of the story.  Pleadings are very brief—the facts—only the facts are relied on.  There’s no evidence that is provided at this stage.

Step 2: is the Affidavit of Documents—which is really the evidentiary part of your court action. Through the Affidavit of Documents each party provides whatever evidence they have in relation to the Claim. If you are the claimant (if you are the plaintiff) and you have certain evidence (certain documents) that you need to rely on, then you must provide copies of those documents to the Defendant.  This is an important point to understand.  There’s something called a Trial By Ambush. And Trial By Ambush—what that means is that one party does not know what is the evidence against them.  All of a sudden the other party shows up with that evidence at the eve of Trial or during the Trial and then it destroys the other party’s case.  Then they can walk out free.  Most of the time you see these kind of tactics in criminal cases where this is allowed for the defendant. So if you watch Law and Order or similar cases you can see that at some point the accused walks in or accused lawyer walks in with the witness who nobody knew about—who that person was or walks in with a piece of evidence that is so damaging that it can destroy the Crown’s case (the prosecutor’s case).  That’s okay in criminal cases but in civil cases there is no Trial By Ambush in Canada or any part of the common law world.  What this means is that each party is entitled to know exactly what evidence the other party has against them and has the opportunity to review that evidence, to inspect that much before Trial.  There’s no surprise attack in Trials (in civil cases).  I want to explain that document is a very expansive term.  These are not just paper documents.  Documents include every single tangible piece of evidence that may exist.  These could be electronic documents, e-mails, text messages, cell phone records, meta data for your documents, photographs, videos, audio recordings and paper documents.  Every imaginable thing that is tangible is a document.  If it’s relevant it needs to be produced for that court action.  Document is defined in the Rules of Civil Procedure Section 1.03(1) provides or contains a definition of documents which I have explained to you.  Each party on completion of the pleadings, has to serve the other party with copies of their Affidavit of Documents which contain all the evidence that they have against the other party.

Step 3: The next step is the Discovery process.  Once the Affidavit of Documents are exchanged, each party is allowed to see if there is any further evidence that the other side has in its possession and they do that through the process called the Discovery process.  You are discovering more evidence from the other side.  One way it is done is through Examinations for Discovery and Discovery is also defined in section 1.03(1) said one of the Rules of Civil Procedure.  Examinations for Discovery is when you call upon the other party to attend Examinations for Discovery.  You are sitting in front of a court reporter. The court reporter records all of the questions that you ask.  Their audio recordings are transcribed in writing.  The other party has to respond to the questions that you’re asking.  The questions are really to explore if there is any more evidence that you need to figure out that the other side may have.  Sometimes when you review the other side’s Affidavit of Documents you may realize that the documents are referring to a meeting and there are no Minutes of that meeting provided to you.  You may want to explore whether there were such Minutes of the meeting; whether those meetings/those minutes are discoverable or not.  There could be additional witnesses that you may discover through the discovery process and you want to make sure that those witnesses attend a Trial.  Discovery process is really an opportunity for each party to explore whether there is more evidence that needs to be presented; that needs to be obtained prior to Trial because remember when the Trial begins then you don’t have or rarely have an opportunity to adjourn the Trial on the basis that you have discovered new evidence that is not available at this time and you need to adjourn your Trial, go get that evidence and then come back when the Trial begins. Usually you are expected to have done your homework, produce all of the evidence that you need and then proceed with the Trial up to its completion.  That is why the Discovery process is generally, the most important step in a civil action.

Step 4: Once the Discovery process is complete or even sometimes before the Discovery process is done, the Parties go to Mediation to see if the matter could be settled.  Now depending upon in which region, which part, and which municipality your case is, if your court action is in Ontario, you may have mandatory Mediation.  In some you don’t have mandatory Mediation.  In Toronto the Mediation is mandatory for all court actions.  What this mean is that both parties or all of the parties have to agree to a mediator who has to attend a Mediation session and explore whether this court action could be settled without going to Trial.  I can tell you from experience in employment law cases that the majority of wrongful dismissal cases over 90 to 95 percent of the wrongful dismissal cases get settled at Mediation stage and don’t even go to Trial.  If you want to know whether the Mediation is mandatory in your specific region you must check the Rules of Civil Procedure and Practice Directions to figure out whether you are required to attend a Mediation.  If you’re not required to attend a mandatory Mediation, you may still want to explore with the other side whether it’s a good idea to go and attend Mediation. 

Step 5: If the matter doesn’t settle at Mediation, you can proceed to Pretrial.  Pretrial is really another attempt—now in front of a judge to see if this matter could be settled.  When a pretrial is arranged; it’s now arranged in front of a Master or a Judge.  The judge will first of all try to see if the parties are willing to resolve that matter.  The judge will try to help those parties to come to a resolution.  If the parties are still not able to resolve their case, then the judge will try to narrow down the issues for Trial, so that the Trial judge knows what are the legal issues that he/she has to decide at Trial.  Finally the judge will figure out how many witnesses each side has; how many days it will take to complete the Trial and then schedule the Trial dates.

Step 6:  Final step is the Trial.  This is the step where you are presenting your case with all of its evidence either before a judge or in front of a jury and the judge or the jury will ultimately decide who wins the case and who loses.  At the end of the Trial there are always winners and there are always people who lose and if you don’t want to be in that position then you really want to explore prior to the Trial whether this matter could be settled.

Few things that you want to keep in mind is that if you are in a court action or you want to commence a court action or you’re defending a court action in Ontario, you want to read the Rules of Civil Procedure and the Practice Direction to understand what steps you have to take.  You also want to keep in mind that for each step, for each document that you have to file or serve there are forms for that step.  Those forms are also available online.  You can go to Google and type in Rules of Civil Procedure forms and all these forms are available online. You will notice that these forms are numbered.  The way they are numbered is usually if it’s, let’s see, this is the number 4A, it is titled General Heading of Documents-Actions.  4A—this document relates to Rule 4 of the Rules of Civil Procedure.  If you scroll down, there are all these documents that are numbered and they are related to the specific rule that they are referring to.  You can find these documents. You can open them in Microsoft Word or in pdf.  You can complete those documents and these are the ones that you file. You want to remember that even though you may have commenced a court action or you are defending a court action, the court action can be settled at any time.  You may have been served with a Statement of Claim and you believe that the matter could be settled by talking to the plaintiff or to the applicant or to the pleading party, then you can have that resolution.  You can go to a Mediation.  You can have a third party help you with the settlement and you can settle it.  There are cases that settle at the eve of Trial, there are cases that settle during Trial—as long as the Trial is not completed you have that opportunity (even sometimes before the judgment) you can actually settle the case and then allow the court to dismiss the court action without getting a judgment.  Settlement can occur at any time at any stage.  It really requires all parties to agree to a settlement and then settle the case.  Last thing I want you to keep in mind is that there are the legal costs.  There was a study that came out a few years ago in Toronto which indicated that a three-day Trial in Toronto from the time it is commenced (from the Statement of Claim) to the time the Trial is completed costs upward of $50,000.  Those are the legal costs that are present in our system which are quite high and it’s one of the factors that you want to keep in mind when you are deciding—when you’re taking your case all the way to Trial—whether in a cost benefit analysis it makes sense to fight the case all the way to Trial and not ignore that the resolution through Trial takes a long time.  The courts are overwhelmed by so many civil cases that it takes quite some time to get to Trial stage.

Hopefully this lecture explains to you the basic steps of a civil action in Ontario.  What we will do in the future lectures—we will cover some of the important Rules in each lecture, explain their application, explain what do they mean, how do you apply those rules in your own circumstances and then as we move forward we’ll try to decipher/unravel the mysteries of Rules of Civil Procedure.  If you have any questions, please contact us, send us an email or post your comments and we’ll be happy to address those.  If there are any specific Rules of our questions relating to any specific Rules that you may have in your mind, by all means contact us and we’ll keep adding those in our future lectures. 

Thank-you for watching.

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Lecture Slides:

Machine Transcription:

Welcome everyone this is Amer Mushtaq from You Counsel.

Today we’ll talk about the process of going through job postings, attending job interviews and then receiving employment offers.  The idea is that you understand some of the basic legal concepts to help you understand the process, understand your rights and then appropriately deal with circumstances as they may arise.  We start always with our Disclaimer that this course is not legal advice.  If you have any specific questions you must contact a lawyer or a paralegal.

First thing you want to keep in mind is that whatever employment you obtain in Ontario or elsewhere, in Canada, there is a certain legislative framework that surrounds that employment relationship.  What I want you to remember is there are five basic legislation that, will impact or relate to your employment relationship, at one time or another.  These legislation are (1) The Canadian Human Rights Act.  This is a Federal Act for employees or for employers who are federally incorporated.  If you work for a federal employer, then the Canadian Human Rights Act will apply to your circumstances.  (2)  If you are an Ontario employee then the Ontario Human Rights Code will apply.  If you are an employee elsewhere in another province or territory then the human rights legislation for that province or territory will apply. (3) If you are a non-unionized employee in Ontario then the Employment Standards Act is another legislation that contains a number of rights that you’re entitled to and those are specified in Employment Standards Act.  4. Canada Labor Code is again federal legislation for employees who are employed with a federally regulated company and finally 5. The Labor Relations Act is for Ontario employees who are unionized.

In addition to the legislative framework you must understand the policy framework.  Legislation comes on top and then, there are specific policies that may apply in your specific employment circumstances. (a) If you are a unionized employee, then unionized employees have collective agreements.  These are contracts between the union and the employer which have very detailed clauses about what an employee can do, what are the hours, how do they get benefits, how do they get to scheduling—all those kind of things are specified in collective agreements.  That applies to unionized employees only.  If you are a unionized employee, then you must go through your collective agreement and understand it.  If you are not a unionized employee, then it’s not relevant to you. (b) The second important policy that you want to look at is the employers’ workplace policies.  When you sign up or you join a company, you’re often given an employee handbook, a workplace policies are given a website that contains all those policies and it’s a good idea always, always to review all those policies in detail because those policies govern your conduct, your rights, your obligations in relation to your employer.  You must understand those. I think also if you are with that employer for a while, let’s say for a few years, it’s always a good idea to review those policies from time to time to see if there are any changes and keep those policies in mind because these policies are always very important. (c) The third policy framework is industry specific practices.  What I mean by that is, if there are no direct workplace policies that the employer may use to deal with an issue, then, there may be certain industry practices that they need to follow.  An example could be, for instance, if you’re in automotive sales.  In automotive sales if there is a process of how the regions are specified or how the commissions are paid and at what time and how are the invoices done and what not, there may be some well-known industry practices that many companies follow.  So absent any employer workplace policies, then you can rely on industry specific practices.  Then, if there is a dispute, you can bring this to a judge and the judge will take industry practices into consideration.  A legislative framework is more important than the policy framework that you must keep in mind.

Let’s jump to the job postings.  Job postings are usually pretty straightforward to use.  You see them in Workopolis, Indeed and in the newspapers.  They specify what is it that an employer is looking for in a candidate in terms of experience, in terms of qualification and what not.  But there are few things that you must keep in mind when you’re reviewing job postings.  A job posting must not be discriminatory—in the sense that they should allow everybody/everyone regardless of their gender, race, ethnicity or origin—as long as the person is qualified and is allowed legally to work, it should provide equal opportunity for whoever is applying.  You will notice from many job postings that job postings say “so and so employer is an equal opportunity employer”.  They’re taking it a step further to ensure that you understand that the posting is for everyone to apply and there is no preference over one person or another on the basis of the Human Rights Code.  The preference could be based obviously upon the qualifications but not based upon factors that are discriminatory.  Non-discriminatory criteria is, often, laid out.  If it’s not, it’s implicit and if you notice anything in a job posting that states otherwise, then that’s a cause of concern.  In some circumstances there may be discriminatory criteria that is actually allowed in law.  An example could be if there is a disability clinic that provides services to people who are disabled.  If they decide to hire specifically people with disabilities, then, that may be a situation where discriminatory criteria may be permitted.  But generally speaking the criteria for job postings must be nondiscriminatory.

Pay equity is another issue which is quite significant and is still not resolved in Canada and in a lot of other countries. Pay equity is something to keep in mind.  There’s a legislation called Pay Equity Act.   But that is very specific to, I believe, federal or provincial employers.  I believe only federal.  What you must understand is that it doesn’t apply to private employers.  So you want to understand what is the concept of pay equity? Is it is obvious in the job postings that they are treating everyone equally regardless of their gender with respect to remuneration? Or are there different criteria for that?  These are some of the things to look at in the job postings—obviously in addition to whether you are a correct fit for the criteria of qualifications and expertise that is being sought. 

Let’s say you apply for the job position, you get an interview and now you are attending the interview. There are obviously questions that employers will ask that will confirm your qualifications and your experience.  They will review your resume, will talk about your past experiences, but at times the employer may ask inappropriate questions—or questions that are discriminatory.  Questions, that relate to issues that are prohibited under the Human Rights Code.  The employer is trying to get a sense of that primarily for its’ own benefit.  I can give you an example and that may explain it better.  A lot of young women have these issues and we get these complaints all the time and we file human rights complaints for that.  An employer is trying to gauge whether this particular female employee does she have young children; is she planning to have young children—because if a woman is planning to have children, then she may apply for parental or maternity leave and may be away from employment for about ten months or a year or so.  Employers may not be very comfortable in accommodating that kind of situation so oftentimes they try to figure those things out even before they hire the employee so that they’re not in a position to accommodate that person.  A discriminatory practice—which happens quite commonly. Then there are very subtle ways that the employer will go around asking those questions.  Obviously, the simple question could be: are you married? do you have kids? and what not?  Those are obviously very discriminatory questions but some of the ways the employer goes around those questions is by asking: “hey, what do you do in the evenings? how do you socialize? how do you spend time? etc—trying to figure out from your replies as to whether you have a long term relationship; whether you have any children or not; because if you’re hanging out with your friends every evening or on the weekends then you may not be in a relationship where you have children.  All those kind of questions are inappropriate and so we often get this question that how do you handle those kind of inappropriate questions.  It’s a tricky thing.  You can obviously call on the employer and say, “This question is inappropriate/ I am not comfortable answering that.  But then the challenge is that if you still want the job, then how do you handle the question without actually not responding to the question but still being tactful.  The answer is really that you look at the circumstances.  You think about whether this is the kind of employer you want to work for.  If the employer is showing signs of discrimination right at the outset, (even in the interview process) do you want to have a long term relationship with that employer?  Having said that, if you still want the employment then obviously, you deal with it tactfully. You do not give away answers that may lead them to believe one way or another—you don’t need to lie about it but you can still be tactful; you can be a little bit evasive in terms of those questions and then the employer may get the message to back off.  There are ways to handle those questions and obviously you have the option of saying that you’re not comfortable and then just do not answer those questions.

One more thing in the modern world that I want to sort of raise with you is that: yes, the employer can ask these questions and often do ask inappropriate questions at the interview stage.  With modern technology with all social media websites, a lot of employers are not even getting to the stage where they need to figure this out.  They’ll just simply go to your Facebook or your Linked In or other social media accounts.  You know most people have their lives on those social media websites and it’s very easy to figure out someone’s relationship status or children and whatnot.  These decisions about the selection of who gets to the interview may take place even before the employer calls you for an interview by just simply going through your social media. It is absolutely very, very common for an employer to go through social media websites of potential candidates. It has become, in fact, a routine practice for employers to do that.  If you’re looking for a job, if you want a certain career, you have to be watchful of what you put on social media websites because they absolutely have an impact.  You can use those social media websites to have a positive impact on your job or they can diminish your chances of seeking employment—even though you may have excellent credentials.  This is something to be careful about in terms of social media context.

In terms of remedies, if you are asked an inappropriate question and by that I mean a question that’s discriminatory something about your age, your marital status, your sexual preference—all of these things, including your ethnicity, religion—are prohibited in an interview.  But if an employer does ask you those questions, then you have in addition to saying that you’re not comfortable in asking those questions, you actually have the ability to file a complaint with the Human Rights Tribunals or Human Rights Commission—depending upon whether you’re in Ontario or in a federal jurisdiction or in another province—for discrimination and you can get remedies through that process.  That is something to keep in mind or you can commence court actions or you can seek legal advice and then proceed accordingly.  But you know if you’re really looking for a job and you want to work for that employer then you may have to be tactful to get into the workplace and getting the job there. 

Let’s say you pass through the interview process.  Now you have a job offer in your hand.  The single most important thing that you want to keep in mind when you look at that job offer is the termination clause—not your salary, not your hours but the termination clause.  That’s the single most important thing because we have spoken about this in a separate lecture.  You can go through our channel and there’s a whole lecture about contracts and the termination clauses.  So I’m not going to repeat that here. But this is the single most important thing—because in your lifetime in this day and age you will go through a number of employments.  You will be let go from employments regardless of how good an employee you are—just because of the economics of it.  And then the termination clauses will be triggered—which will decide what benefits/what rights do you have on termination.  You could have significant rights on termination if the termination clause is not in your contract or if it’s drafted in a way that it benefits you most.  So that’s the single most important thing.  Second most important thing is the clause about restrictive covenants.  This is again included in a separate lecture.  But restrictive covenants are the things that you’re not allowed to do even after your employment has ended.  Those restrictive covenants control your actions even after your employment has ended.  You want to make sure that you understand those clauses and you’re comfortable, you’re agreeable with those because even when you end the employment, you’re no longer with the company and you still are not able to do certain things, so it’s important for you to know what are those things.

One thing that I want to keep in mind is that once you sign the contract, once you sign on that dotted line and you give it back to the employer then you have a binding contract.  You are bound by it so that the start date may be a week from now, you know a month from now but the contract the moment you have signed you’re bound by it.  That is why it’s important that if you are unsure about any clauses, if you’re not clear about anything, you want to talk to an employment lawyer or anyone anybody else to understand that prior to signing it.  Once you sign it you’re bound by that contract.  Secondly, oftentimes we are posed with this question that: look, I signed a contract and now I have another job offer, can I just leave that one.  I haven’t started there and then go and join another company.  Well, the answer is yes.  You can go join another company but you are actually in breach of the first contract.  Most employers won’t care.  Some employers may and they will come after you for the breach of contract and then they may seek damages so be mindful of that.  We have done cases converse to it.  In one situation, we had a pharmacy manager who came to us who had applied for a job in another pharmacy, got the job, signed the contract, the start date was a month from then and then he resigned from his existing position and then at some point in between that time after he resigned and before he began employment at the next place, the new employer contacted him and said they were rescinding the offer.  So he approached us and we said no, it’s a breach of contract.  They cannot just simply rescind an offer—because it’s a binding contract.  So we had to sue that employer and seek damages.  Signing the contract, the act of signing, is important.  Once you sign it then you’re bound by those terms.

Hopefully this was beneficial in terms of the hiring process and job postings.  It gives you some sense of what your legal rights are.  If you have any questions or if you have any specific topics that you want us to cover, by all means contact us and we’ll cover those in our future lectures.  Thank you for watching.

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Welcome everyone this is Amer Mushtaq from YouCounsel.

Today we’ll talk about workplace bullying and harassment in Ontario.  If you have any understanding of what’s going on in workplaces you would notice that workplace harassment and bullying is on the rise.  There are many reasons for this.  Some of the reasons are: (1) we’re spending increasingly more time at workplaces—even more time than what we spend with our families and friends. By virtue of spending more time at work, it is bound to happen that there will be frictions between employees and coworkers and that gives rise to all kinds of issues including bullying and harassment. (2)  Workplaces are getting more stressful.  There are more demands from the employers.  Nature of economy is changing, which is adding another layer of stress on employees.  Finally, (3) In the workplace employees are often put in competition with each other and that naturally gives rise to friction and all kinds of issues which can emerge in the form of bullying and harassment. 

Today’s course is about workplace bullying and harassment.  The fundamental things that we will discuss will explain what workplace bullying and harassment actually means so that you can understand and can apply it in your circumstances.  (I) You will know whether you are experiencing workplace bullying and harassment within its legal definition in Ontario.   (II) Secondly, it will provide some basic steps that you want to undertake in order to prevent workplace bullying and harassment against you; or, (III) if you are experiencing bullying and harassment, then what kind of remedies you can get through that process.  Let’s get right into it.  Our usual disclaimer comes first, that this course is not legal advice.  If you have any specific questions, you must contact a lawyer or a paralegal.

Let’s talk about workplace harassment.  The first question that should come to your mind is: what you are experiencing is that workplace harassment or bullying or not?  Go to Google and then you type in a legislation called “Occupational Health and Safety Act”.  It’s available on Canlii.  Click on that. This is an Ontario legislation that deals with all kinds of health and safety matters including, workplace bullying and harassment.  This is the Act that you can review at your own leisure.  Let’s get into workplace harassment and see if we can find a definition. Here we have.  This is in Section 1.  It is called the definition section.  Workplace harassment is defined here. I want to go through this slowly with you because we’re talking about the definition and I want you to really, clearly understand it.  Workplace harassment means “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome”.  If you carefully read this over and over again you will get the theme out of this specific definition.  The definition of workplace harassment is extremely broad.  There’s a good reason to keep it so broad because the kind of circumstances that can be defined or can be explained as harassment are so various and are so significant/so diverse that a narrow definition would be too restrictive.  It would not cover all of the scenarios.  For instance if the legislators have put in sarcasm, bad jokes, inappropriate language—is harassment then that would have been too narrow.  Remember it says vexatious comment or conduct.  The conduct or comment has to be vexatious.  Vexatious is a very broad word with so many different interpretations.  That conduct has to happen against a worker in a workplace and then that is known or ought reasonably to be known to be unwelcome.  Either the person who is bullying or harassing the other person—either the person knows or reasonably to be known—meaning that when people look at that situation objectively and they look at that conduct, they will come to the conclusion that yes, this was a vexatious comment or conduct.  It would come under the definition of workplace harassment.  What is the key message here?  It is that workplace harassment, by definition in law, is a very, very broad definition.  It can cover a variety of circumstances.  That’s something to keep in mind.  If you scroll down, I want to show you two other things: (1) workplace sexual harassment it has a separate definition (separate meaning) and you can review it; and then (2) workplace violence is a separate category and it has a separate definition.  We’re not covering all of those today.

We’re focusing on workplace harassment.  What you want to remember is that there is legislation in Ontario that deals with workplace harassment which is called the Occupational Health and Safety Act.   We just looked at that and the definition of workplace harassment is in Section 1(1).  You also may have noticed that there was no word bullying in that Occupational Health and Safety Act.  Primarily, because the definition of harassment is so broad that it will include bullying anyways and so bullying is not separately defined but workplace harassment as it’s defined in the Occupational Health and Safety Act does include all kinds of bullying. Let’s go through some examples and these are very, very few examples.  There are so many circumstances where because of that definition you can find the conduct to be vexatious enough and to fall under the category of workplace harassment.  Let’s look at some of the examples: insulting language, inappropriate language, name calling, swearing.  These are some of the obvious simple examples of workplace harassment. Jokes, embarrassing jokes, hurtful jokes, humiliating jokes about a coworker either in his or her presence or not, could constitute workplace harassment.  Gestures, body language—this happens quite often and we get a lot of complaints where the person who is bullying or harassing is not actually saying anything verbally but his or her gestures and body language is so inappropriate that it can amount to workplace harassment.  I’ll give an example of this.  It was from one of our cases that we dealt with, where this particular employee would sit in an open office environment.  The supervisor/the manager will come in and she will say good morning or hello to each one of them while specifically ignoring this person.  This happened on a daily basis.  If you experience that kind of behavior every morning, every day of the week when you come to work you can imagine what kind of cumulative impact this will have on that person.  That kind of behavior would constitute harassing behavior.  Similarly, physical touching (any inappropriate physical touching) which is unwelcome can amount to workplace harassment and can amount to sexual harassment as well. You want to look at both definitions.

Another important thing that you want to notice is interference in work.  I want you to understand this a bit more interference in work there are the 2 kinds of interference that a manager or supervisor can have in your work: (1) one is sort of a constructive interference, i.e., you’re doing something wrong or you need some coaching or you need to be monitored.  Certain times that may be appropriate.  But sometimes the manager or the supervisor is so micromanaging your work or so involved in your work in a way that it almost becomes harassing and its ongoing, it’s constant—it happens all the time and that may amount to harassment.  Another example could be micromanaging (getting too involved), or taking away work from you—if for instance, in a case we dealt with, where the employee who was a managerial employee whose attendance was required in certain meetings but she was completely ignored.  She was not sent meeting invitations, she was ignored at the meetings and where the key decisions were made and what not and that could be a form of harassment too.  Those are the examples of harassment.  At the same time you want to keep in mind that constructive criticism of your work—if you have done something wrong and you are appropriately reprimanded—that is not harassment.  That is management of that work and management of the employee.  Sometimes the line is a bit blurred. You want to look at all of the circumstances of what’s happening.  I don’t think that it is for a decision maker (for a judge for/an arbitrator)—it will be a very hard thing to figure out whether it was harassment or whether it was simply the management style of the supervisor or manager.

Let’s jump into the how do you fight workplace harassment?  If you’re experiencing workplace bullying or harassment: What do you do?  I’m going to talk about that.  I believe there are some 4 concrete steps that you want to take if you’re experiencing workplace harassment are: Step 1: is always—if you’re experiencing workplace harassment—you must seek help for yourself or your physical for your mental health you must seek help.  If you are concerned about your physical safety, to the extent that you need to call the police, you must take that step.  In terms of help—if you need to go see your family doctor, your therapist, your psychologist or psychiatrist you must do that.  There are two advantages of doing that.  A. Number one you’re getting treatment.  You want to feel better.  You want to look after your physical and mental health.  B. Second is that when you go see your doctor and therapist you’re reporting these incidents and they’re getting documented with that specialist / with that therapist.  Further down the line, if you are before an arbitrator or a judge in a court an investigation of those documents—those doctors’ records / those medical records—become part of your evidence.  They may support your case.  If you’re experiencing workplace harassment I think, it’s important to get that documented with your doctor and therapist if you need to seek help.  Do not feel shy or do not feel reluctant in going and seeking help. C.  One more thing you want to explore is—and many, many at least large employers in Ontario and Canada have what’s called, E.A.P. (Employee Assistance Programs) which are help lines, confidential third party help where you can call usually a 1-800 number and if you’re experiencing psychological, physical, mental harassment, workplace harassment and bullying you can contact them.  They have therapists available with whom you can share the information confidentially.  You can get help.  If that’s something that’s available at your workplace, you must take it, you must benefit from it and must take advantage of that.

Step 2:  Document, document , document. I cannot emphasize this point enough.  Why?  Because in majority of the cases, workplace bullying and harassment is verbal (it’s oral).  There are no e-mails or no memos, there are no letters that contain harassing, bullying language, sometimes they do but the majority of the cases all incidences are oral or verbal. If anyone either an investigator or a judge is reviewing this matter it all comes down to “he said /she said” and so you want to make sure that you document whatever you were experiencing contemporaneously—meaning that if it happened to you today you want to go home and document it in detail so that you have a record that you can bring to your investigation; that you can bring to your trial and provide to the decision maker.  The advantages are: (a) number one: you have you not have documented something which was done contemporaneously so there’s some evidence of that.  (b) Number two: when you document something on an ongoing basis it will have more details in it.  Whereas, if you try to document it six months down the line you may not remember the parties who were present; you may not remember exactly what was said; you may not remember what time it was said; what was the circumstances of that comment and whatnot.  Documenting on an ongoing basis, if you feel or you believe that you’re experiencing workplace harassment and bullying is essential.  You must do that to protect yourself. Some of the things that you want to keep in mind are: what, when, where, who – what happened; what was the issue; what was the conduct that you were complaining about; when did it happen; where did it happen; who were all present—whether any witnesses; you want to document that.  If there are any documents that can prove your issue directly or indirectly, you want to keep records of that.  For instance, if workplace harassment took place in a meeting and there were minutes of that meeting that were recorded, you want to get a copy of those minutes and put them in your record because that will at least; even if there are specific comments, harassing comments were not documented—at least it will support your allegation that you were attending so and so meeting and this was said.  There is some sort of indirect evidence that will help you later down the line.  Documenting what you’re experiencing and going through is a very crucial (very important) step that you must do.

Step 3. Review policies.  Often times, when you’re hired at the workplace—when you sign up (you sign the employment contract), you get handed an employee handbook of workplace policies.  They may include anti-harassment policies; antiviolence policies; human rights policies; employee code of conduct, all of these things may be there. You may have looked at them a few years ago and not recently, so you want to get a hold of all of these policies review them again to make sure you understand how your employer’s policies define workplace harassment – workplace bullying.  What kind of conduct is covered in that? Then you want to understand what the process is if you have a complaint because you need to follow that process when launching your complaint.  You want to review those policies just to be current.  In a situation where you work for an employer who doesn’t have any of those policies then that’s a problematic issue.  For an employer, it indicates that the employer has actually not turned its mind towards workplace harassment and antiviolence issues and so that may lead to problems for the employer in dealing with your complaint.  Review policies apprise yourself of how workplace harassment and bullying is defined.  What is the process of filing your complaint? 

Filing a complaint.  Now what and where do you file a complaint? You generally have three avenues of filing complaint.  (i) number one: you file a complaint with the employer; (ii) Number two you can file a complaint with the Ministry of Labor in Ontario; and (iii) number three you can actually go to a lawyer and commence a court action.  If it’s appropriate file a complaint (an application) with the Human Rights Tribunals if your matter is also covered under Human Rights Code. These three avenues are open to you. 

My recommendation is that: (1) the first step you want to do is file a complaint with the employer.  The employer may not be aware of what’s going on or the employer may not know the extent/the nature of harassment that you experience and so you must give employer an opportunity to investigate and to remedy the situation to the extent possible.   That’s an important step that I always recommend that you must do.  (2) Second step you don’t need to exhaust the step number one to the employer you can you to go to Ministry of Labor you can go to the Ministry of Labor directly but my recommendation is to go to employer first.  You can file a complaint with the Ministry of Labor.  The legislation has been strengthening more and more from the time that it was initially brought in 5 to 7 years ago. Ministry of Labor will either appoint its own inspector to come and investigate or will force the employer to hire an external investigator to conduct an investigation.  Either way, the Ministry of Labor will take your complaint and will take certain actions. Then your matter can be investigated; and (3) finally like I said you can go contact a lawyer and commence a court action; if that’s appropriate or file an application with human rights tribunal; if that’s appropriate.

OK I want to quickly talk about investigations so you can understand the concept of investigation.  When you file a complaint with the employer, generally speaking, there are two options that the employer has: (i) employer has either to conduct an internal investigation; or (ii) conduct an external investigation.  An employer will decide which one is appropriate based upon the nature of your complaint, based upon its circumstances.  Internal investigation is as the name implies done by somebody who is internal to the employer—internal to the organization.  Could be an H.R. person, could be a senior manager, could be a vice president, and could be any of those people who may be appropriate and who are qualified, who have competence to conduct an unbiased investigation.  Sometimes that internal investigation is not appropriate.  For instance if your complaint is about bullying and harassment against the Director of Human Resources, then anyone from human resources is not an appropriate person to conduct an investigation because of the potential conflict because of the potential bias.  There may be circumstances based upon the nature of your complaint, based upon who you have complained against that it is appropriate to conduct an external investigation and if you believe that your circumstances are such that employers should conduct an external investigation (hire third party) to conduct investigation, then, you must ask for it at least in writing.  If the employer chooses not to act upon it that’s their prerogative but it may cause harm to the employer for not taking care of the issues objectively.  Investigation is important.  A lot of senior lawyers conduct investigations. I do investigations for corporate clients—not my own client; but other lawyers clients because I don’t represent them. I go in as an investigator to conduct workplace investigation and then provide my unbiased findings and recommendations if asked for.

What is the conclusion? My recommendation on workplace bullying and harassment is always, always, always speak up! A lot of employees that we talk to they’re always concerned about fear of losing their job or reprisal at workplace that what if they stand up and make this complaint; what if they lose their job and what if they will face retaliation in other forms.  Reprisal is protected under the Occupation Health and Safety Act—just so you know. But more importantly what you want to understand is that if you don’t speak up, if you don’t stand up, if you don’t file a complaint, then the workplace bullying and harassment doesn’t stop.  It won’t stop against you; it won’t stop against other people and it will only get worse. Then the problem with that is not only that it gets worse but it has huge, huge negative impact on your life.  It impacts your relationships with your family; it impacts your relationship with your friends; it could cause significant damage to your mental health—all of these things accumulate.  They’re very toxic, they’re very negative and you may end up in a situation where if you don’t stand up you don’t speak up, the party who is causing harassment and bullying will continue and create a situation where you walk out of the job and resign not having taken care of your rights.  I think this lecture has given you some understanding of your basic rights and hopefully you will be able to handle the workplace harassment and bullying situation in your workplace better. This is a topic that is sort of growing.  There may be circumstances which are very specific and examples of workplace bullying and harassment that you want us to cover.  We’ll be happy to continue adding on this topic.  If you have any questions by all means please contact us and we will be happy to keep adding on to this topic.  Thanks for watching.

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Welcome everyone this is Amer Mushtaq from YouCounsel.

Today we’ll talk about entitlement to overtime pay in Ontario.  Many employees are unclear about their rights for overtime pay in Ontario. This is a common issue.  We’re going to discuss today some of the essentials regarding overtime pay so you understand the basic concepts and have some clarity on when you are entitled to overtime pay and when you’re not. We’ll begin with the Disclaimer that this course is not legal advice.  If you have any specific questions, you must contact a lawyer or paralegal.

 What is overtime pay? Overtime pay is decided or is governed by the Employment Standards Act 2000 in Ontario and in other provinces there is similar legislation that provides how the overtime pay is regulated in those provinces.  The fundamental concepts (the principles) in this lecture are equally applicable to other provinces but the legislation specific to overtime pay in each province is different. You must check your provinces’ legislation to make sure that you have a clear understanding of the hours and how much wages you are entitled to.

The Employment Standards Act 2000 for Ontario.  The basic concept you want to remember is that if you have worked for more than 44 hours per week, then you will be entitled to overtime pay and that you will be entitled to 1.5 time.  If you were making an hourly wage of $20/hour, then you will be entitled to $30 for that time period.  Another concept you want to understand is that Employment Standards Act 2000 allows for averaging of these hours over two weeks or a longer period.  But there are some specific requirements for that averaging.  It’s not available to employers by default.  I’ll show you a little bit about that specific section of the Employment Standards Act 2000. One final thing you want to keep in mind, is that Employment Standards Act 2000 again allows the employer to provide time in lieu as opposed to money for the overtime hours.  But again, there are specific requirements that must be fulfilled.  This option is not available by default.

Let’s look at Employment Standards Act 2000 and see where this specific section is, that deals with overtime pay.  If you scroll down the Table of Contents; this is the Employment Standards Act 2000.  You can type it up on google and you will find it available online on CanlII.  That is one website and there are other websites where you will find the legislation available.  Part VIII of the Employment Standards Act deals with overtime pay.  Let’s click on that and see what it provides. Section 22(1):

 …an employer shall pay an employee overtime pay of at least one and one-half times his or her regular rate for each hour of work in excess of 44 hours in each work week or, if another threshold is prescribed, that prescribed threshold.

 —what that means as you can see further down below about averaging and time in lieu and whatnot.  Essentially, forty four hours plus per week—if you work that many hours then you’re entitled to time and a half.  I talked about averaging.  This is the Section 22(2) that talks about averaging:

 (2) An employee’s hours of work may be averaged over separate, non-overlapping, contiguous periods of two or more consecutive weeks for the purpose of determining the employee’s entitlement, if any, to overtime pay if,

(a) the employee has made an agreement with the employer that his or her hours of work may be averaged over periods of a specified number of weeks; and

If these are the specific conditions the employee has  made an agreement with the employer that his or her hours of work may be averaged over a period of a specific number of weeks, you as an employee must have that agreement, otherwise the employer cannot average on his or her own.  The employer has received an approval under Section 22 (1) that applies to the employee or a class of employees that includes the employee.  This approval is actually obtained from the direction of the Employment Standards Act and so that needs to be done.  Then it talks about averaging.  These are some of the specific terms.  The key message that you want to keep in mind is that if you work for more than 44 hours then you will be entitled to overtime pay. 

 Here is Subsection (7) that talks about Time in Lieu. 

 Time off in lieu

 (7) The employee may be compensated for overtime hours by receiving one and one-half hours of paid time off work for each hour of overtime worked instead of overtime pay if,

 (a) the employee and the employer agree to do so; and [your agreement is essential]

(b) the paid time off work is taken within three months of the work week in which the overtime was earned or, with the employee’s agreement, within 12 months of that work week. 

 If you’re not agreeing to it, then you must get paid and the pay time off work is taken within three months of the work week in which the overtime was earned or with the employees agreement if you’re agreeing to it within twelve months of that work week [Refer to 7(b)].  There are specific requirements when an employer can offer you time in lieu.  And absent those specific conditions the basic principle is that you’re entitled to time-and-a-half or 44 hours plus work in excess of 44 hours per week. 

Now a question arises which is very, very common and this is a common misunderstanding.  Clients come to us all the time and say that I am NOT entitled to overtime pay because I was a salaried employee.  I was making specific amount of income regardless of the hours so I assume that I’m not entitled to overtime hours.  I’m making $30,000 annually or I’m making $60,000 annually and so my paycheck is quite specific.  It’s not based upon the hours.  I don’t get paid based on $15/hour or $20/hour.  There’s an assumption made by employees that if you are a salaried employee you’re not entitled to overtime pay.  An absolutely incorrect assumption. Please keep in mind that whether you are a salaried employee or whether you are making hourly wages it has no bearing on your entitlement to overtime pay—if you are working for more than 44 hours per week it, does not matter whether you’re a salaried employee or an hourly wage employee, you are entitled to overtime pay.  It’s a very, very common misconception and I think it’s important for you to understand that.

What about low income versus high income? We sometimes get clients who make significantly high income.   Somehow they believe that overtime pay is only for employees who are much Junior, who do not make a lot of money.  I want you to be clear that whether you make $30,000/year or $150,000/year, it actually has no bearing.  It makes no difference in law to your entitlement to overtime pay.  I have had a number of clients who worked in investment banking field, who worked in a non managerial, non-supervisory capacity.  These are young MBAs who worked for investment banking firms.  If you know anything about Investment Banking, the employees there work at least 60/65/70 hours per week.  They are always working more than 44 hours.  There are actually very, very few times that they’re not working that much and yes they get paid a lot of money.  Sometimes their basic salary is $120,000 to $150,000 plus they get bonuses on top of that.  Are they entitled to overtime pay?  As far as the legislation is concerned, as far as the law is concerned as it stands today: absolutely yes.  I have launched a number of court actions in which we claimed overtime pay for these very highly paid individuals because they were not given overtime pay by their employers.  Whether you make low income or high income, it has no bearing on your entitlement to overtime pay.

What about supervisory vs. non-supervisory roles.  This is one factor which has an absolute bearing on whether you are entitled to overtime pay.  This is the factor that makes a difference if you are a supervisory employee.  You are not entitled to overtime pay.  Only non-supervisory employees are entitled to overtime pay.  Where is this principle (this rule) coming from?  It is coming from the Employment Standards Act.  I’ll show you where this exemption is but if you are in a supervisory capacity you are not entitled to overtime pay—but there is a caution here.  You want to keep in mind the difference between the substance and the form.  What do I mean by that? Are you an employee who was actually working in a non-supervisory capacity but just carry a fancy title as a manager? If that’s the case, then you are still entitled to overtime pay.  Your title is not what the court considers it is, it is what you actually do.  I’ll give you an example, I’ve had a number of clients who had worked for pharmacies and they had the title of Manager of Pharmacy but, in essence, they were only spending maybe thirty minutes or less on any managerial work—which was scheduling other people’s schedules for the day or for the week.  For the rest of the time during the day they were stocking merchandise in the shelves, they were receiving merchandise, they were acting as shipper-receiver, they were working as a cashier, they were mopping floors—all of these tasks were non-managerial tasks.  Those were the tasks that they were doing 80% to 90% of the time.  The managerial role was very limited.  For the time that they were working or performing non-managerial tasks, if they had accumulated more than 44 hours per week they were absolutely entitled to overtime pay.  Another example I can give you is: I had a client who was an executive chef at a very high end hotel—which has chains all around the world.  He approached me for some other matter and when I asked him about his hours here (excessively long hours) and I suggested to him that he was entitled to overtime pay.  He rejected that saying that he was an Executive Chef which was a managerial position and he could not have been entitled to overtime pay.  I responded to him that, that was not correct because I had seen, like you, a number of shows on television that show these chefs working and you realize that majority of the time a chef is actually working in the kitchen with his or her hands—preparing stuff, preparing meals and whatnot.  When I delved deeper into his day, I realized that his managerial role was NOT more than 5% of his work.  The rest of the time he was actually preparing meals with his hands which was not considered a managerial task.  So he was entitled to a significant amount of overtime pay.  Consider that if your role has a title that sounds like a supervisory role or a managerial role, it does not matter.  What matters is what is the nature of your duties and if your duties were such that they were considered non-managerial / non-supervisory, then you will still be entitled to overtime pay for that work.

 Let’s get to exemptions now.  As I said everybody who works for 44 hours plus in a week is entitled to overtime pay and then I’m talking about exemptions.  The same Employment Standards Act that say’s that you are entitled to overtime pay also prescribes (also provides) under what circumstances you’re not entitled to overtime pay.  We will talk about Ontario Regulation, 285/1, Section 2; in the same regulation, Section 8; and again in the same Regulation Sections (13) to (18).  Let’s have a quick look at those Regulations and see what we can discern from them.  I open here the entire Regulation.  Just so you know what a Regulation is—Regulations are Rules that are made and are subsidiary to the major legislation.  This Regulation is in the Employment Standards Act.  It’s called O. Reg. 285/1 and let’s go down to the Table of Content and when we go here in Section (2) Exemption, regarding various parts of Act an exemption for Part 7 to 9 of the Act and remember that part 8 is the one that talks about overtime pay.  This specific exemption is 7, 8 and 9.  Who are the people who are exempted from overtime pay?  Let’s click on that and it says Part 7 to 11 of the Act do not apply to a person employed as a duly qualified practitioner of architecture, law, professional engineering, public accounting, surveying, veterinary science, so on and so forth.  There’s an entire list.  Two things to keep in mind that all of these people are exempt.  They’re not entitled to overtime pay, even if they’re working more than 44 hours.  An architect who is working—duly qualified practitioner—which means that, that person is actually a licensed architect.  A lawyer who is working as a lawyer not if a lawyer who’s working as a business manager for a company or as a business you know associate for a company, then he is not working as a qualified practitioner of law.  There is a bit more detail into how you want to read this.  But these are examples of some of the professions where individuals in those professions  are not entitled to overtime pay:  chiropody, chiropractor, dentistry, massage therapy.  A duly registered practitioner under the Drugless Practitioner’s Act, a teacher, a student in training for an occupation in the list, a sales person or broker.  All of these people are not entitled to overtime pay.  That’s one category of people who are not entitled to overtime pay.  It doesn’t end there.

 Let’s look at another category and we go down to Exemption under Overtime Pay, Section 8. And when you read this Section 8 of the Act does not apply to and there are other people: firefighters; and this is the one I was talking about “a person whose work is supervisory or managerial in character [he or she is actually working in that capacity] and who may perform non-supervisory or non-managerial tasks on an irregular or exceptional basis”.  Remember I said that if majority of the time you’re working in non-managerial capacity then you are entitled to overtime pay; but if you are a managerial employee and you are occasionally working in non-managerial capacity in your example you’re not entitled to overtime pay.  Then there are the odd exceptions like a person employed as a fishing or hunting guide, a person employed as a landscape gardener, the one who’s installing swimming pools, and so on and so forth.  There’s a whole list of that.  Information Technology professionals are not entitled to overtime pay.  Why are these people exempt from overtime pay?  I cannot answer that.  Is that justified?  I cannot say that but just so you know that there are a number of exceptions for people who are not entitled to overtime pay and so if you want to be accurate, you may want to check the legislation properly and make sure that you understand who are not entitled to overtime pay.

There’s a third category that I had mentioned, Sections 13 to 18.  Let’s quickly look at that category.  It say’s people who are working in road building, there are certain specific sections that say that they are not entitled to overtime pay.  Hotels, motels, tourist resorts, restaurants and taverns, people who are working in fresh fruit and vegetable processing, sewer and water main construction, local cartage, highway transport—there are further exemptions for people that are not entitled to overtime pay.

What you want to remember—the message that you want to carry—is that you never ever assume that you are not entitled to overtime pay.  You should not assume that. You always keep records of the hours that you work.  You keep those records outside of the office, in your home, on your home computer, so that when you need to prove that you actually worked hours more than 44, you have some record to prove that.  You always want to consult an employment lawyer because there are, as I showed you, so many specific exemptions and how the law is applied in those exemptions, that you may want to make sure that if you don’t understand it clearly yourself, then talk to a lawyer so that you can understand whether you are entitled to overtime pay or not.  I can tell you from experience that the majority of people who come to us have no understanding of when they are entitled to overtime pay or not, or they assume that the employer will be abiding by all the applicable laws and when they are entitled to overtime pay, they will get those. But if you watch the news, if you read the news, you will realize that there are number of class action lawsuits against many major corporations for unpaid overtime pay.  This is something that isn’t uncommon.  Many employers either by ignorance are just by sheer neglect fail to pay overtime pay to their employees. 

If you have any specific questions about this topic or you want some clarification, please add a comment on YouTube or send us an e-mail and we’ll be happy to add further lectures on this topic.  Thank you for watching.

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Welcome everyone.  This is Amer Mushtaq from YouCounsel.

Today we’ll talk about the law of Dismissal for Cause in Canada.  We’ll cover some basic topics so you can understand the fundamentals of this concept.  Essentially, dismissal for cause occurs when an employer believes that an employee has done something wrong and and he or she deserves to be dismissed immediately from employment.  We will begin with the usual Disclaimer that this course is not legal advice.  If you have any specific questions, you must contact a lawyer or paralegal.

What is just cause for dismissal?  It is essentially an employee’s misconduct.  The misconduct is so bad that the employee deserves to be terminated immediately.  When a court is making a decision about whether a particular dismissal was justified as “just cause” or was it a “wrongful dismissal”, the court considers the circumstances in a contextual way.  It’s called the contextual approach.  This is something that you want to keep in mind.   What I mean by that, I will explain with an example.  If an employee was employee for about fifteen years with a stellar record, i.e., no disciplinary issues and one day the employee ends up disobeying his or her supervisor or manager or speaks improperly (in a derogatory manner) or something like that (which is completely out of line with proper employee conduct), does the employer have a right to dismiss the employee for cause?  The employer may think that this one incident is sufficient to dismiss for cause.  But when the court is looking at this conduct, the court is going to look at the entire fifteen years of record to see how the employee behaved in fifteen years, what kind of conduct he had with his managers and other employees and what not and the specific circumstances of this particular incident and then decide whether the decision to terminate him for “cause” was justified or not.  It’s a contextual approach and looks into a variety of circumstances before a decision is made. 

One thing you want to remember about dismissal for cause is thatit is considered the capital punishment of employment law.  In other words, what an employee has done is so bad—is so egregious, so heinous that he deserves the highest punishment.  In employment law, it is dismissal for cause.  These are not sort of small incidents of misconduct, but something that is really, really harmful, something really egregious.  In majority of circumstances, where the employer actually claims dismissal for cause when the cases are tried in court, majority of the time, the court does not find a dismissal for cause—unless the conduct that was alleged was so egregious that it deserved dismissal for cause. 

We’ll talk about it in a bit more detail by giving you some examples.  Let’s get into five things that I have indicated that you may want to keep in mind—(1) what happens to an employee’s rights when he or she is dismissed for cause?  Keep in mind, that when an employee is dismissed for cause there are No termination rights and No post-termination rights.  He or she does not get any termination rights,  termination pay, severance pay—nothing—no severance, no common law reasonable notice that employees without cause termination may be entitled to.  The terminated employee for cause does not get any of those rights.  The employee is not even entitled to employment insurance because it’s a dismissal for cause.  What you want to keep in mind is that (a) there are no post-terminations rights but the pre-termination rights are intact.  What I mean by that, is whatever salary, benefits, commissions, the employee has accrued up to the point of termination, he or she will still be entitled to that. He or she will not be entitled to any rights post-termination. Point number (2) Single incident: what I mean by that is whether a single egregious incidence of misconduct amounts to dismissal for cause? and the answer is yes it could be sufficient.  Going back to our example of the 15 years service employee who conducted himself improperly.  Let’s take that same employee who had a stellar record for fifteen years and then at some point in the present he steals a large amount of money from the employer.  That may be sufficient grounds, despite his or her fifteen year good conduct, to justify dismissal for cause. 

In majority of the cases, when somebody has worked for such a long time and has had no disciplinary issues or had no misconduct issues of that nature, then it’s unlikely that he or she will be found to be an employee deserving of dismissal for cause.  The point that you want to remember is that a single incident can amount to dismissal for cause.  You want to keep that in mind.  Violence at work—a significant violent issue at work may justify a dismissal for cause.  (3) What about infractions that are accumulated?  I want you to understand that there could be a series of incidents. I can quote an example.  For instance ongoing absenteeism or coming late to work or leaving early from work—if this kind of behavior is ongoing for a long time, and an employer has been issuing warnings and the employee has not been heeding all kinds of warnings—all this may cumulatively amount to dismissal for cause.  The employer may be justified—just because the infractions are not too significant but the fact that they have been repeatedly happening and the employee may have been receiving warnings for that, then that may amount to dismissal for cause as well.  (4) What about progressive discipline? And we get this question often when an employee is terminated for cause and he or she comes to us and states that he/she had never received any warnings or any suspensions and therefore the employer is not justified in terminating the employee for cause.  That may not always be the case.  Progressive discipline is not necessarily a prerequisite to termination of cause, it depends on one of these factors: (a) it may depend upon the employer’s workplace policies.   If the employer has workplace policies that require the employer to issue warnings and require the employer to provide progressive disciplining to the employee before terminating him/her, then you may have an argument that progressive discipline was a prerequisite.  Generally speaking, prior warnings or previous suspensions are not required.  It really depends upon the conduct.  The court is looking at the entire context of that conduct to decide whether the dismissal is justified for cause.

Let’s talk about some of the examples of just cause dismissal: (1) stealing or embezzling money from employers, obviously, is an example of where the dismissal for cause would be justified; (2) violence and workplace harassment including sexual harassment of co-workers or other people; sometimes violence and harassment outside of work may lead to dismissal for cause from employment; (this is an area that’s constantly changing and expanding and one needs to be mindful of that); (3) disobedience: of lawful orders may amount to dismissal for cause (4) discrimination with coworkers or other employees or the employer may cause dismissal on just cause basis.

Some of the examples where dismissal may not be justified are (1) performance issues: a lot of times we get cases where the employer has terminated an employee for just cause because the employee could not meet the performance matrix. I can tell you in majority of the cases that performance is not considered an element of just cause dismissal.  Performance is something that the court believes that the employer has a job to do due diligence to make sure that they have hired an appropriate employee who is able to perform based on their requirements. If they are unable to meet the employer’s standards then the employer can terminate them without cause but terminating with cause is not something that’s commonly acceptable.  (2) what about meeting targets? now a lot of companies provide certain target e.g., sales ( targets for objectives) that an employee must meet.  When the employee is not able to meet those targets, sometimes the companies try to terminate the employee for cause.  That’s also not generally acceptable.  The court will consider that the employer can terminate the employee without cause but not meeting targets is generally not considered grounds for dismissal for cause.

Other minor infractions for which I can give you different examples are: occasional coming to work late or actual occasional absenteeism which sometimes may be justified, sometimes may not;  rude behavior with your coworker, occasional rude behavior or with your superior—these kind of things – the mistakes that are sort of human mistakes that may happen just because of being in workplace and working with other people.  Those may not amount to just cause dismissal if somebody is not a well-liked person, based upon his or her behavior with others then the employer has always this inherent right to terminate an employee without cause and that’s the direction that the court prefers the employer to take.

What you want to keep in mind about dismissal for cause: is that it is the capital punishment of employment law world: someone has to have some done something so bad, so egregious that the without cause dismissal is not an appropriate remedy and they must be terminated with cause.  2^nd  thing you want to keep in mind is that the approach that the court takes is contextual.  They look at a number of factors in deciding whether in the specific circumstances of that case the dismissal for cause was justified or not.  If you’re ever faced with “dismissal for cause” my suggestion is to contact an employment lawyer and have them review your circumstances.  They can advise you whether you have a case for wrongful dismissal or not. 

Hopefully this helps you understand the fundamentals of dismissal for cause.  If you need an explanation of any points or you have any other things that you want us to talk about, by all means contact us and we’ll be happy to add it in our future lectures.  Thank-you for watching.

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Welcome everyone this is Amer Mushtaq from YouCounsel. 

If you want to understand only one thing, in Canadian employment law, that would be the concept of reasonable notice of termination. It is the single most important concept that has a strong bearing on your employment relationship whether you are an employee or an employer.  We’ll talk about what this reasonable notice is and what does it mean to you and will explain it in simple terms so you can apply it in your own circumstances.  Before we begin, we will start with our usual disclaimer that this course is not legal advice so if you have any specific questions you must contact a lawyer or a paralegal.

Why is reasonable notice important?  Basically, reasonable notice is important because it may translate into significant amount of money.  If you are an employer, you may end up providing a significant amount of money to your departed employee.  If you are an employee, you may be entitled to a large amount of money.  The relevance of reasonable notice is directly related to the money that you may get on termination. Two things you must keep in mind with respect to reasonable notice—if you are terminated without cause and you are entitled to common law rights on termination—in that situation, once those 2 conditions are fulfilled, then you are entitled to common law reasonable notice of termination.  To give you a perspective this reasonable notice could be as high as 24 months of income.  If you make $100,000 income annually then sometimes, if you meet the criteria, you may be entitled to up to two years of your pay.  That’s a significant amount of money on terminations—when you’re actually losing your job.  What is this reasonable notice?  The main thing you want to understand is that the term reasonable notice is called reasonable notice commonly but the proper term is “common law reasonable notice of termination”.  What is this?  It is a Notice that an employer provides to an employee and basically tells the employee that his or her employment is going to end.  This common law notice or termination notice could be given in one of three ways. 

Option 1 is working notice: employee can come to you and say “Hey Mary / Hey John your employment is going to terminate as of December 31^st of this year (let’s say 12 months from now) and I am giving you this working notice.  You are required to come to work every single day as if you are an employee and perform your duties.  We will provide you your salary and when December 31^st comes that’s your last day”.  Then you go home and never come back.  Then you don’t get any more money—this is it.  This is a working notice.  You work the entire twelve months or whatever the duration of the reasonable notice is and then you go home and that’s the end of it.  There’s no money at the end of it.

Option 2: Or the employer may say “Hey John / Hey Mary your employment is ending today.  Please return your keys, return your access cards.  At the end of the day you go home, or you leave now and you do not come back.  Here is the money for twelve months of your pay or they may say we will continue to give you your salary for twelve months until you find another job or something like that”.  But the termination happens immediately, and you get the money for the notice period.  That’s option number 2 which is actually the most common option.  Most employers do not like to retain an employee on their premises who knows that his or her employment is going to end sometime in the future because it makes it difficult for that employee to continue working knowing that he/she are going to lose his/her job some time in the future and there’s a date that has been announced.  Also, it may jeopardize the relationship (it may poison the work environment).  Majority of employers do not like to give working notice.  Sometimes it works better, and employers do that, but mostly the employers do not give working notice.  They would rather give you money in lieu of working notice.

Option 3: is a combination of both.  The employer can give part of working notice and part money in lieu of notice.  It happens sometimes when the factory is closing (the plant is closing) down in three months time.  Your reasonable notice requirement is let’s say twelve months.  The employer may say, we expect you to work for the three months or three months of the work notice and the remaining nine months we will give you the money.  It could be working notice, it could be money in lieu of working notice or money in lieu of notice or it could be a combination of working notice or money.  That’s what a reasonable notice is.  It is a notice that is provided by the employer to the employee providing that employee a specific date which will be the final date of employment of that employee’s notice of termination.

We talked about common law rights.  You’re entitled to reasonable notice if you are entitled to common law rights.  We’re talking about common law reasonable notice.  We’re not talking about the statutory termination notice which is a completely different thing.  One important part you want to understand is that you get common law rights by default—common law rights are presumed.  What do I mean by that?  If you get hired with a company and let’s say you don’t have any written job offer / written employment contract whatsoever, somebody interviews you and says, welcome we’re going to pay you $X amount, this is your position and can you start on such and such a date.  You say “yes”.  And that is an employment contract even though it’s verbal but you have entered into it and when you have entered that employment contract then you, by default, have all the common law rights.  That means if you are terminated for certain specific circumstances, then you are by default entitled to common law reasonable notice of termination. But, the second thing you want to keep in mind is that that Common Law Rights for the reasonable notice of termination that presumption is rebuttable.  What that means is that, that presumption can be displaced by a contract.  If you have a written employment contract the employer can put in a clause which can change your common law right on terminations.  It can take that away—it can remove that reasonable notice by contract.  How is it done?  We’re going to talk about that in the next slide.

Displacing common law reasonable notice: one way to do that is your employment contract may say—first of all it will have a specific termination clause—if in the in the event we terminate your employment without cause, you will be entitled to your statutory termination rights and nothing more.  We are limiting your rights to statutory rights on termination.  We’ve spoken about that in a separate lecture and maybe we’ll talk about it a bit more.  Each province has a specific statute that deals with employment relationship, terminations, and all of those—and they have specific rights for the employees. For instance, in case of Ontario, we have the Employment Standards Act 2000, which has a specific clause that say’s that if you’re employed for X amount of years you get  X weeks of pay as termination pay.  Those natural rights are very, very minimal.  There’s no comparison between the statutory rights and Employment Standards Act and common law rights.  There’s a huge difference. 

1. A contract can actually take away your “common law reasonable notice” and say what you will get is only statutory rights and that’s legal, it’s allowed, an employer can do that. That’s one way of doing that. 
2. The other way is that the the contract may say we retain your common law rights and if the contract retains your common law rights then that’s what you’re entitled to or the contract may not have any clause about terminations whatsoever and if there is no termination clause then the presumption is still there and so you are still entitled to common law reasonable notice.
3. The third way that the employer can do is give you something in between—more than statutory rights but not common law rights. They may say we’ll give you your statutory rights plus two weeks or plus a month or something like that, which may be much less than common law rights but it is at least more than your statutory right.  That could be a clause in your employment contract.  Or in some cases, which is really very rare, your contract may provide you terminations rights which are actually more than common law rights. I have seen this and you may have noticed this, this usually happens mostly in appointments which are political appointments. You would see in newspapers that a large Crown Corporation or semi Crown Corporation have been working—and it’s in the news the C.E.O. did not perform well and they terminated the C.E.O.’s employment.  Then you realize that the C.E.O. got hundreds of thousands of dollars and sometimes millions of dollars in termination—as a severance package and everybody’s up in arms.  But the legal answer that you will get is, unfortunately that was part of his or her contract and so there’s no way that we can take that away.  There are circumstances where termination rights are negotiated much more than common law rights but it’s very, very rare.  You won’t see it.  In my experience it is in these political appointments where this kind of thing happens.  These are some of the ways that contract can displace the presumption of reasonable notice.

Factors for Reasonable Notice: now I said you could get up to 24 months of pay and not everybody can get that—that is an extreme example.  What are the factors that you can keep in mind? what kind of factors would the courts consider in deciding what is an appropriate common law reasonable notice for a specific case.  There is no formula; there is no one reason—there are a variety of factors that the court considers and then decides what would be an appropriate common law reasonable notice for this employee who has been terminated without cause.  These factors are basically listed in a case but they talk about more factors to be considered and they’re called Bardal factors.  This is a term that is used in case law and employment lawyers use this often—every time they refer to Bardal factors, those are some of the factors that the court will consider in deciding reasonable notice.  When you look at the cases, the jurisprudence, the courts have considered as many as about 170 different factors in arriving at what is an appropriate reasonable notice.  There are four common—most common factors that you want to keep in mind.  Those are the essential ones that would apply to every single case: 1. Age: what is the age of an employee who has been terminated? The formula here or the top process here, in courts mind, is that the older the employee is, the more reasonable notice of termination should be.  Courts believe that it will take older employees longer time to find another job as opposed to younger employees.  Their reasonable notice of terminations on the basis of their age will play a role in an increased reasonable notice.  2. Second factor to keep in mind is length of service.  The longer the employee’s service with the employer is, the longer the notice period would be.  If you are a long service employee, then you will get a higher notice.  I have had clients who have worked for an employer for twenty years plus and they may be entitled to twenty four months of pay depending upon other factors.  3. Third factor that is considered is the position and the way this works is what is your position?  Are you a senior management employee, a management employee, middle management, lower management, clerical, technical, engineering person? What is the kind of position you’re occupying?  Then the principle the court applies generally is that the higher the position of the employee, the higher the notice period so if you are a C.E.O. of a company you will probably get higher notice than if you were a much junior employee.  4. The fourth factor is what are the chances of finding another job for that specific employee? There’s no empirical evidence available.  But there are different factors considered.  I’ll give an example: some time ago there were significant reductions in the automotive industry jobs and whatever jobs were being eliminated there were no alternative positions.  Many engineers who had automotive industry experience for many, many years had to retrain to go into another job. That was a factor that for them chances of finding another job in Canada in the automotive industry was slim and so the court would award higher notice.  Those are some of the factors that court will consider in deciding what would be an appropriate reasonable notice and as I said it could be as high as 24 months or sometimes even a bit more. 

What is it that you want to carry from this course (from this lecture)? It is that when you are negotiating your employment contract (you are not hired yet) you are a candidate who is at a stage where the employer is making you an offer and has provided you with an employment contract and if you have any room to negotiate sometimes (you don’t sometimes) you just accept, you’re just happy that you got a job and you sign at the dotted line and you take the job.  In many, many cases you have room to negotiate.  If you do, you want to make sure that your common law termination rights are are not displaced and they remain intact.  I have advised many of my clients when they have been faced with a job offer and they have successfully negotiated that position because if the employer really wants you for that position, if the employer believes that you are an important addition to their team then they will value your negotiation.  They will value that you are going to look after some of your own interests in that employment contract.  The second part is that even if you already have an existing employment contract or you’re not able to negotiate something different you want to make sure that you properly review your existing employment contract because even if it has a termination clause, in many, many cases that termination clause maybe challenge, may be shown or may be proven that it’s unlawful or it’s improperly drafted.  Then that will not rebut the presumption for a common law notice and you may be still entitled to it.  It’s a complex area in employment law—which termination clauses are valid and which are not and if you talk to any employment lawyer, they will give you the advice that over 90-95% percent of the time smart employment law counsel will be able to challenge the appropriateness of a specific termination clause, get it thrown out and then have their client get some reasonable notice.  If you are unclear, if you’re not sure, you want to talk to an employment lawyer so that you understand your rights because what is at stake is a significant amount of money.  Those are two things that you want to keep in mind.  Hopefully, this gives you some understanding of what is common law reasonable notice.  We will have many more lectures. If something is unclear or you want something elaborated upon, by all means reach out to us or write to us with your comments and we will be happy to cover that in future lectures.  Thank-you for watching.

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Welcome everyone this is Amer Mushtaq from YouCounsel.

Today we will talk about judicial officers or judicial officials in Ontario. The context of this discussion is that you can understand what is the role of these judicial officers with respect to your civil matters or criminal matters in Ontario. We begin with the disclaimer that this course is not legal advice, so if you have any specific questions you must contact a lawyer or a paralegal.

Judicial officers are appointed pursuant to specific legislation. In Ontario either it is the Court of Justice Act or the Justices of the Peace Act or some other legislation. There is specific legislation that allows the appointment of these officers. Today we will talk about three common officials that you may deal with, with respect to your matters: (1) Judges; (2) Masters and (3) Justices of Peace.

Let’s talk about a Judge. (1) A Judge is obviously a provincially appointed person, usually somebody who is a lawyer, with 10 plus years of experience. He or she is a decision maker with respect to a number of trials that you may be dealing with. These are criminal trials, family law trials or other civil matters and the deciding person (the decision maker) is usually a Judge who will be making the decisions in these trials. The Judge has—in general terms—the most authority on any legal matter. He or she is always addressed as “Your Honor”. This is just to give you an idea that if you are dealing with a Federal Court Judge or a Judge of the Supreme Court of Canada, then you address them as “Your Lord” or “My Lord” or “My Lady” or “Your Lordship” or “Your Ladyship” depending upon the grammatical sentence you’re making. Generally speaking in Ontario in civil matters you address the Judge’s decision as Your Honor and not as Mr., Ma’am or Sir.

(2) A Master is somewhat similar to a Judge but does not have as much authority as a Judge. They are also provincially nominated. And are mostly lawyers with 10 plus years experience. Masters usually (and they’re mostly in Ontario—in fact mostly in Toronto and then some in Ottawa. This is a category of decision makers which I believe are now being scaled back. The provincial government is appointing Judges more and more as opposed to Masters but Masters are still present and you may end up dealing with them on different matters. Masters deal a lot with motions or different kinds pre-trial, construction lien matters and what not. They don’t preside in trials but they deal with other issues. Generally, you address a Master as a Master and not Your Honor but sometimes because I don’t see Masters that often, I end up calling them Your Honor, which is fine but Master is addressed as Master.

(3) Justice of Peace is a category that you as a citizen may deal or come across most. To become a Justice of Peace you do not require any legal background. They may be lawyers (past lawyers) but may not. As long as you have some work experience either in paid capacity or as a volunteer and you have some education undergrad degree or a diploma of any kind that is sufficient qualification to become a Justice of Peace. Generally speaking these are individuals who have some participation in community, some sort of community service i.e., they have (some sort of connections) in the sense that they have provided service to community to get appointed as a Justice of Peace. Normally you will see Justices of Peace with respect to parking tickets, traffic tickets, provincial offenses, etc as those are the kind of issues that are mostly dealt with by Justices of Peace. You address a Justice of Peace as “Your Worship”. That’s the term to use Your Worship. That term is fading away. A lot of people just call the Justice of Peace, “Your Honor” as well. But properly speaking, the term to address a Justice of Peace is not sir or ma’am but Your Worship.

Why should you know the difference between a Judge, a Master and a Justice of Peace? Most of the time it’s not an issue. Once you are presented before a decision maker by default—whether your matter is going to trial or some other court process is happening—you are presented to somebody who is the decision maker, then you don’t need to worry about whether this is a Judge or a Master or Justice of Peace as long as you know that, that person is the decision maker. The only item that matters is that you know how to address that specific person. In some circumstances it is absolutely crucial for you to know the difference. For instance, if you have to bring a motion in the Superior Court of Justice in Toronto or in Ontario, the first thing you need to determine is whether you can bring the motion before a Judge or can it be brought before a Master? Can the Master give you the request that you are seeking through that motion? Because if you bring a motion that can be heard by a Master and you bring it before a Judge, the Judge may not be too happy about it. Primarily, because Judges have a very heavy workload of their own and if this matter could have been dealt with by a Master, they would prefer that you would have gone to a Master. Depending upon which Judge you come across they may grant you the order or they may just send you out and you will have to bring the motion before a Master. Conversely, if you bring a motion before a Master and the Master does not have any authority to grant the Order on the motion, then this simply means that the Master has no jurisdiction and so the Master cannot give you what you’re asking. The matter has to be brought before a Judge. It’s an important distinction in terms of bringing motions. A lot of times many counsel are confused about whether the particular motion can be brought before a Master or not. If you have retained counsel, then obviously the counsel will do the homework to figure out whether any motion can be brought on that specific issue before a Master or not but if you’re representing yourself then you want to make sure that you understand who do you bring the motion before. Then obviously as I said it’s important for you to know how to address the specific decision maker.

There are a variety of other decision makers that I haven’t touched upon which are appointed also in the province under different legislation. For example, the Ontario Human Rights Tribunal has decision makers that are called Vice-Chairs. These are really Judges for the Human Rights Tribunal but they have different powers, they have different roles than a normal Judge. It’s good to have some understanding of who the decision maker is so you can present your case properly.

In summary, you need to understand who the decision maker is and if the distinction is important to understand that. If you want to read more about Judges their appointments; Masters their appointments and Justices of Peace, I have provided a link which is from the Ontario Courts. You can check it out. Also if you want to know all of the Judges that are in Ontario—that have been appointed—all this information is available online and you can by all means check it out.

Hopefully this gives you some understanding of the decision makers that you may deal with in Toronto or in Ontario Courts. If you have any specific questions or require clarification on any of the specific decision makers by all means send us a comment or question and we’ll be happy to include that in one of our future lectures. Thank you for watching.

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Welcome everyone. This is Amer Mushtaq from YouCounsel.

Today we will talk about obligation to mitigate in employment law circumstances. It is an essential obligation in most of the employment law cases in fact it is a duty on the part of the terminated employee to try to mitigate his or her damages. We will talk about it. We will explain what does it mean to mitigate and what is it that the employee needs to do. Before we begin, we will provide you with our usual disclaimer: that this course is not legal advice. If you have any specific questions please contact your lawyer or paralegal

Let’s begin with mitigation. What does it mean? We will talk about mitigation in its broad sense. Mitigation is essentially the reasonable action that a party (the aggrieved party or the party who has suffered any loss) must take to minimize the loss that it has suffered. Let us explain that by way of an example which will make it easier. Assume that you had a car and you were trying to sell that car as you were leaving the country or you were transferred to another province. You had to sell that car and there was a time crunch. You get into a sales contract with someone who is interested in buying your car. You come to an agreement and the person is willing to buy your car—let us say for $20,000. You have set a date and time when the person will come and give you a check for $20,000 and take away the car. Based on that, you refuse any other offers that other parties that may be interested in buying the car from you and you turn them away because you have already entered into a contract. For some reason the person who has entered into contract with you does not fulfill the contract (does not pay you the money), basically ignores the contract completely. If that is the case then you have suffered a loss of $20,000 (your damages) because you have a valid contract which is not being enforced

What does the law ask you to do? The law asks you to try to mitigate your damages. In this case, how would you mitigate your damages? You will try to sell that car to someone else within the time frame that you may have. Let us say if you are in a time crunch and only have a day left then you put your ad on Kijiji or in the newspaper. You eventually are able to sell the car for a loss; you sell it for $15,000. Your damages really are now $5,000 against the person who had entered into a contract with you for $20,000. This is what you have done for your initial damages for $20,000—you took steps to sell the car to someone else because the law says you have to try to mitigate those damages and you were able to partially mitigate—meaning out of $20,000 you recovered $15,000 and the loss is $5,000. Now, imagine that if you were able to sell the car for $25,000. Then you actually have no losses against the party that you had contracted with. You were able to fully mitigate your damages even though the other party breached the contract—there are no resulting damages. You are not entitled to any money if you were able to recoup all of your losses. That is what mitigation is and that is what it does—it tries to, in a way help the party who has actually breached the contract by imposing on you to try to minimize your damages.

In employment law context what does this mean? In most of the wrongful dismissal cases the duty to mitigate arises because in most of wrongful dismissal cases what you are telling the court is that you have suffered loss or damages in the amount of X amount of dollars ($20,000/$100,000/$200,000) because that was the termination /severance pay /reasonable notice that you were entitled to that the employer did not provide. In that case the law imposes an obligation on you to try to mitigate those damages. If the damages were $100,000, the court imposes a duty on you to do certain things so that the damages could be reduced from $100,000. That’s what is an obligation to mitigate in employment law context. I will talk about how you go about doing this.

One note that you want to keep in mind is that the obligation to mitigate in employment law does not arise in every single circumstance. There are some specific circumstances where you don’t have an obligation to mitigate. Those are very few circumstances. It is not common. You must contact your lawyer and figure out whether you have an obligation to mitigate and if you do, then you make sure that you fulfill that obligation? What do you do in employment law context to mitigate your damages? Essentially, you make efforts to look for another job. Right, that’s how you will mitigate because your damages are employment damages which your previous employers refuses to give you—salary for $X amount for X amount of months. The way you can mitigate is by working for another employer for X amount of months for X amount of dollars. That’s how you can mitigate.

What are the things to keep in mind? The obligation to make an effort. The court requires you to make reasonable efforts and what does that mean? If you are for example based in Toronto or in the GTA and you are working in GTA, the law does not require you to go look for a job in Alberta or Saskatchewan just because you have an obligation to mitigate because that will be considered unreasonable. You don’t have to fetch every single job that is relevant to you around the entire country but reasonable efforts are required.

The second part that you want to keep in mind is that you have to look for a comparable job. What that means is it has to be comparable to the previous job that you had at the former employer. For example, if you were a Manager of Accounts and and you have to look for a job, then you are not required to apply for jobs as the cashier at Walmart or McDonald because that’s not a comparable job. Comparable is in terms of the duties that you had and also comparable in terms of pay. If you were making $100,000 at the previous job, the law does not require you to go look for a job which pays you $75,000. It doesn’t have to be a match for dollar-to-dollar but comparable. If you are making $100,000, then $90,000 or even $85,000 may be considered comparable but anything less than that may be considered not comparable. You make reasonable efforts to look for a comparable job.

Final point is very important. You must keep full records of all of your activities and what that means is (1) that you must keep a summary / a log of all of the activities that you do or you perform in your efforts to mitigate your damages; and (2) then you keep all the corresponding evidence. If you have been sent an email you must keep records of those emails; if you have been sending letters, faxes or making phone calls—you must keep evidence. This matter might go to trial and you may have to prove that you actually made those efforts. Your word alone is not sufficient—you must prove this with evidence that you actually make those efforts.

Let me give you an example of how do you go about making those efforts. Here is something that we ask our clients to look into with respect to job effort. Let’s say we usually give them the copy of this spreadsheet and say you want to make sure that you are following this. This is an example of an Excel spreadsheet. It has multiple columns (1) a date—you want to make sure of what date you are performing that activity; (2) if you’re looking for a job at a search engine like Indeed or Workopolis or a specific company website or a recruiter—you want to document that; (3) the name of the person that you contacted, phone number, email address, etc.; (4) in what industry you are looking for that job; (5) what was the title of the job; (6) was it a full-time job or part-time job; you want to look at all of these things (7) then what was the annual salary—what was the income that was being offered; (8) what was the location; (9) how did you apply—did you send an email, did you call, did you attend in person; (10) how many job postings did you review; (11) how many postings did you actually apply to. These are some of the things and then (12) what was the outcome of these job searches? Did you get any interviews; did you get any call back; whatever the response was you want to document that. This spreadsheet is a summary, it creates a log for you—which you can review, the lawyer can review, opposing counsel can review, the judge can review or the mediator can review. They have a summary before them that shows them what kind of activities you have performed. You must also keep the corresponding evidence. If you send faxes or emails for anything, you must keep those faxes and emails because that is actually what is evidence. You must prove to the other side that you actually performed those activities. That is in terms of job activities. What you do want to remember is: that first of all you want to make sure that you confirm with your counsel or make sure if you are required to mitigate or not—find this out early on. You don’t wait for a few months or midway through your court action. You must know this from the outset of your case. Most lawyers who practice—in our firm as soon as we are retained, we send out a detailed memo to our client basically explaining to them (1) what is mitigation; (2) how they’re required to mitigate; and (3) how do they keep records of that. Then you make sure that you make reasonable efforts to mitigate and that you keep all records.

I’ll give you a quick example of what mitigation entails. I recall one of our clients she lived in St. Catherine. She worked for a video store as a Manager. The entire store closed down. There were no comparable jobs available. She had very limited jobs in her area. Based upon her skill set the comparable jobs that were being posted in her area were either none or minimal. Part of her mitigation effort was that she will look at the newspapers on a daily basis and find that there is no job that she could apply for and then just keep records of those newspapers. At Mediation we had this bundle of newspapers with us basically showing that every single day she went and looked for a job in the newspapers amongst other activities. All of these newspapers are there to demonstrate that there isn’t a single job that was comparable to her skill set. That’s another way. It’s not that you just need to prove what jobs you applied to but whatever activities you did when you look for a job. If you went online and you found nothing you must prove that as well. Then everything you do, for instance calling your friends or attending networking events or meeting recruiters these are all activities that you are undertaking to mitigate your damages. You must record all of that so that the judge / the mediator and the opposing counsel has a full view of what activities you undertook.

Mitigation is an important obligation you cannot ignore it and so it’s important that you have good records, so that lack of mitigation does not end up minimizing your damages. Because if you fail to mitigate your damages the court can reduce your damages and in some cases completely negate any of the damages that you are entitled to, simply because you fail to mitigate your damages.

Hopefully, this gives you a basic understanding of the obligation to mitigate in employment law. Contact us if you have any further questions. Please contact us for any clarifications that you require please let us know and we’ll be happy to add that in the future lectures thank you for watching