Commencement of Appeal in Ontario – Basic Steps

July 27th, 2020

This lecture explains basic steps and their timelines to commence an civil appeal in Ontario.

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

 

Show Notes:

N/A

Lecture Slides:

Welcome everyone!

Today I will talk about some of the basic steps in commencing your appeal in a civil court in Ontario.

We begin with our usual disclaimer that this course is not legal advice if you have any specific questions regarding your issues you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

We have presented two lectures on the appeal topic.  We have so far covered some of the basic things for example: what is an appeal? what is the difference between an appeal and a judicial review? The difference between an appeal by “way of right” and where you require the “leave of the court” (the permission of the court) before you can appeal a decision.  What is the difference between an interlocutory and a final order?  We have talked about how you determine which appellate court has the jurisdiction to review your appeal.  If you have not checked out these 2 lectures, I’ll encourage you to review those lectures before you review the steps about the commencement of appeal.

In this lecture we are assuming that you are appealing “by way of right”—in other words you do not require the permission of the court (the leave of the court) to appeal the decision / the order that you are appealing from.  You have the right and what steps do you need to take? There are fundamentally 2 steps. One step we can say is the commencement of appeal and second step is perfection of appeal.  The word “perfection” here is not used in it’s ordinary English meaning. It has specific meaning under the Rules of Civil Procedure.  When we get to that step, I will explain to you what does “perfecting an appeal” mean.  

In this lecture we will only talk about the commencement of appeal.  Step number one not the perfection of appeal, which we will handle in another lecture. For commencing an appeal you have to do 3 things. First of all you have to serve and file a notice of appeal; you have to serve and file a certificate respecting evidence (I will explain what that means); you’ll have to order transcripts of oral evidence and file proof with the  court that you have ordered those transcripts.

Notice of Appeal: For the Notice of Appeal you can complete on either Form 61A or 61A.1. These are 2 forms that are available online. You simply need to google and type in Rules of Civil Procedure forms and you will find all of these forms are available for free.  You can download them. Let me show you what our Notice of Appeal form for the Ontario Court of Appeal looks like.  This is the form Notice of Appeal to the Court of Appeal in Ontario.  I will explain how you fill out this form in a separate lecture.  Let me see if I can find the form for the Divisional Court. This is form 61A.1 for the Divisional Court.  You prepare your Notice of Appeal, then you serve it on all the relevant parties—in this case all of the respondents who have any of their rights being affected by your appeal. They all need to be served.  If there is a defendant that has been noted in default, then that defendant does not need to be served.  You want to make sure that you have served the notice of appeal on all relevant parties.

This needs to be done within 30 days of the making of the order that you are appealing—it is the date that the order was made not when you received it.  If the court had made an order let’s say on November 30th but you received it in the mail on December 4th or 5th—it is the time when the order was made.  Within 30 days of that (November 30th) you have to serve your Notice of Appeal on all relevant parties.  You prepare that and you serve it on all of them.  The other exception to this timeline is that if there is a specific statute or a Rule that you are dealing with that applies to your specific appeal, then whatever timeline is prescribed in that Rule or in that statute may determine when you need to serve the notice of appeal.  Once you have served the notice of appeal then you need to file it within 10 days of the service.  That is 30 days for the service and then within 10 days of the service you have to file a proof of service and the notice of appeal with the court—so that it is confirmed that you have served the Notice of Appeal.

2nd step: You have to serve what is called the Certificate Respecting Evidence and file proof of that service. What is a Certificate of Evidence? This is a certificate that basically sets out what portions of evidence that you will be relying on—that you believe are required for the court to determine the appeal.  There is again a Form 61C that he you can use to prepare that certificate. This is what a Certificate Respecting Evidence looks like.  I will explain how you fill out that certificate in another lecture.  Here is a filled out certificate. Now you serve it on all relevant parties—these are the same parties that you have served your Notice of Appeal on.  You have to do so within 30 days of the making of the order that you’re appealing from.  The same timeline as that for the service of the Notice of Appeal and then you have to file it with the court along with a notice of appeal and you have to provide the proof of service i.e., an affidavit that you have actually served the Certificate Respecting Evidence on all the relevant parties.

Now there is an alternative to the Certificate Respecting Evidence which is called Agreement Respecting Evidence. Either, you can serve and file a Certificate Respecting Evidence or you can consult with the other parties (you can talk to them) and all of you can make an agreement as to what evidence will be presented to the appellate court.  This step is instead of the certificate Respecting Evidence—if you agree with all the parties what evidence will be presented to the appellate court, then you don’t need to file a Certificate Respecting Evidence. You have to make that agreement within 30 days of the service of notice of appeal—whenever you serve the Notice to Appeal, within 30 days if you can reach an agreement with the parties about the evidence then that’s that.

3rd step: is about transcripts. First of all you have to order transcripts of oral evidence. At trial there may have been oral evidence that was presented by parties—by their witnesses and that evidence is recorded in the court process.  For you to rely on that evidence or use that evidence in an appellate level you will have to order transcripts.  You cannot bring those witnesses back. Remember that there is no oral evidence provided in the appellate level—unless you have some permission from the court. But, ordinarily, you don’t provide further oral evidence or even repeat the oral evidence. You have to obtain transcripts of the oral evidence that was presented earlier and then you rely / use that at your appeal. To do so, you have to order transcripts from the Registrar of the court.  Remember that you only order transcripts for the evidence that you and the parties have agreed not to admit.  You don’t provide 10 transcripts of all of the oral evidence. You’re only obtaining evidence (oral evidence) that you have agreed not to admit. The parts of the oral evidence that parties have said we don’t need it for the purposes of appeal—you don’t need transcripts.  You have ordered the transcripts and you need to file some proof in an affidavit (that you actually have ordered the transcripts) and you have to do so within 30 days of the filing of the Notice of Appeal.  The day you filed the Notice of Appeal with the court—you have 30 days from that time to file your proof that the transcripts have been ordered.

If your earlier case was decided purely on affidavit evidence (that is possible) and there was no oral testimony given, then, you won’t need to order transcripts—because there was no oral evidence that you need to produce to the appellate court.  Some of the other things that you want to note in the commencement of appeal process is that if you order transcripts that were unnecessary; if you use evidence that was unnecessary for the appeal purposes the court may order costs against you because now you’re wasting the court’s time. You are providing evidence that was not required for the specific appeal issues before the court. You want to remember from my earlier lectures that an appeal is not a rehearing; it is a review of the errors made by the judge / the earlier decision-maker. It is not a retrial. You are only focused on the errors and how do you present your case on appeal to the appellate court.  It is not that you are required to provide all of the evidence; you only need to provide evidence that deals with the specific appeal issue that you have presented.

Second point you want to note—if you wish to amend your Notice of Appeal you can do so without seeking leave from the court / without asking court’s permission—as long as you do it before you “perfect the appeal”. This is done by serving what’s called a supplementary notice of appeal. You prepare it; you serve it; you file it before the perfection of the appeal and you’ll be fine.  Finally, you want to remember that whatever you have stated in your Notice of Appeal—those are your grounds of appeal and your arguments will be limited to those grounds.  You cannot add stuff at the appellate level obviously without the permission of the court.  You want to be careful about what you are asking in your Notice of Appeal. What are the grounds? So that you know that the arguments you will be presenting at the appeal would be relevant for the court.

You want to carefully review each step.  I need not point that out. You want to make sure that you follow all the timelines. Please, please, please review the Rules of Civil Procedure, Courts of Justice Act, Practice Directions and any other relevant legislation.  Every time you take a step in the appeal you want to review this to make sure that you are actually following all the requirements. In our next lecture we’ll talk about “perfecting the appeal” and then we’ll go take it further from there.

Thank-you for watching.

Appeals Under the Ontario Rules of Civil Procedure

July 27th, 2020

Basic steps to file an appeal in Ontario’s civil justice system are explained in this lecture.

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

 

Show Notes:

N/A

Lecture Slides:

Welcome everyone.

In this lecture we will cover some basic steps regarding an appeal process under the Rules of Civil Procedure in Ontario.

We begin with our usual disclaimer that this lecture is only for educational purposes.  It is not legal advice.  If you have any specific questions regarding your issues, you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

What is an appeal?  You are faced with a decision, in our judicial system, where you disagree with the decision.  You would like to challenge that.  Essentially that’s what an appeal is about. You want to understand that an appeal is different from a judicial review.  We have a previous lecture on this topic which explains the difference between both of these mechanisms—appeal and judicial review.   Both are appellate processes but their processes; their procedures are fundamentally different. They are complementary processes and you need to understand the difference between judicial review and appeal if you would like to dispute a decision. You also need to understand that there is no automatic right of appeal in Canadian law.

What this means is that if you wish to dispute the decision in our judicial system, you need to find the right to appeal in a specific statute. If you can’t find that right, then you are not able to appeal that decision. You also want to be clear that the appeal is not a rehearing; it is not a situation where you are presenting your entire case from scratch with all of the witnesses and all of the evidence to the appellate court. That’s not what an appeal is. It is not a rehearing.  On an appeal there are no witnesses—you simply are arguing on the basis of evidence that has already been presented at the lower court.  If you need transcripts of evidence you will get those and whatever you need. But your reliance is on the evidence that has already been provided.  There are some circumstances in which the appellate court may allow new evidence but that is rare—it not a rehearing—it is simply that you are challenging a decision to the Court of Appeal or Divisional Court and then arguing why the decision was wrong (that you are disputing).

In this process step, number one: that you need to figure out is whether you are dealing with an appeal or judicial review.  If you don’t know the difference, I suggest you check out our previous lecture and figure out whether you need to appeal or you need to apply for a judicial review of the decision that you wish to challenge.

Step number 2: you need to determine whether you have a right to appeal or you need to seek permission to appeal.  And they are two different things.  Remember, I said earlier that you have no automatic right of appeal it must be found in statute. Once you find that statute, depending upon your case, the statute may say that you can simply appeal the decision which is called “appeal as of right” or you have to ask permission from the appellate court to appeal that decision.  Before you appeal it you have to seek permission and it will depend upon the statute.  You need to determine whether (a) you have a right of appeal under that statute or (b) you need to seek permission from the appellate court because if you don’t seek permission or if you are not granted permission you will not be allowed to appeal that particular decision.

Step number 3: you need to obviously figure out what is the appellate court where you can appeal your decision and this is not always straightforward. It depends upon the specific order that you are appealing. Is that order a final order? Or, is that an interlocutory order?

What is a final order? And, what is an interlocutory order? A Final Order generally ends the litigation if not appealed—but not always.  That’s where the complication arises.  In most cases a final order ends the dispute between the parties completely.  An example of that could be an order made on a motion for summary judgment—where the judge has granted a summary judgment motion and may have dismissed a claim.  In that case, if you were the plaintiff and you had commenced a court action for breach of contract, for example, against a defendant and defendant brought a motion for summary judgment and at that motion the judge decided that yes, you have no claim and dismisses your claim in its entirety—then that is a Final Order.  There is a different way to appeal final orders as opposed to an interlocutory order. 

An Interlocutory Order, as it suggests by its name, does not determine the real disputes between the parties; it does not determine the essential substance of the dispute between the parties—which is why it is interlocutory. In the example of the breach of contract case that I mentioned (in the example of the final order)—you brought a motion within your case where you asked the court that the defendant had not produced all of the relevant documents in its possession and you wanted the court to order the defendant to produce those documents.  The decision of the judge on that specific motion is interlocutory because it is not deciding the real dispute—which is the breach of contract between the parties—it is dealing with a subsidiary or an incidental matter in that case but not the essential elements of that case.  So it is called an Interlocutory Order.

Now you want to keep in mind that the determination of whether an order is final or interlocutory is not always easy. You will find that seasoned lawyers (senior lawyers) may disagree on whether a specific order is final or interlocutory.  You will find cases where judges have disagreed on whether a specific order was final or interlocutory.  If you are faced with this difficult decision to determine whether an order being challenged is final or interlocutory and you cannot understand it just keep in mind that you’re not the only one with that problem.

Step Number 4: Once you have figured out whether you have an appeal by “way of right” or you “need to seek the appeal” and you have figured out in which court you are going to appeal the decision or the Order, you need to figure out timelines.  Timelines are crucial under Ontario Rules of Civil Procedure.  You will like to make sure that you read and understand Rules 61.01 to 63.03—which essentially deal with the appeal process in Ontario Courts.  You have to determine what is the timeline to serve your Notice of Appeal (if you are allowed to appeal by way of right).  For example, if you are appealing to the Ontario Court of Appeal, you generally have 30 days to serve and file your Notice of Appeal.  You need to determine if you have to seek leave to appeal—what is the time line to do that?  In case of Ontario Court of Appeal you would have 15 days from the day when the order was issued to seek leave to appeal.  These timelines are important.

You also need to determine, what is the timeline to “perfect an appeal”.  Perfecting an appeal means that you have to take additional steps after you have served your Notice of Appeal or after you have been given leave to appeal before your appeal could be heard.  Those steps are called perfecting the appeal.  There are specific timelines with regards to those steps. You want to make sure that you have absolute clarity on what those timelines are. 

For you to figure out all of these steps, it is essential that you review the relevant legislation.  What it means is that you must review the legislation that is dealing with the subject matter of your underlying case.  For example, if you’re dealing with a discrimination matter under Human Rights Code, you want to make sure that you read the appellate sections or appellate clauses in the Human Rights Code that allow or disallow or relate to the process of appealing a decision of the Human Rights Tribunal of Ontario.

Or it could be another legislation that you may be dealing with or you could be dealing with a dispute where no legislation may apply.  For example, if you have a straightforward breach of contract case in which there is no application of a specific statute and you are only seeking remedies under common law, then this is a scenario where there is no specific statute that deals with the subject matter of your case.  In that case you want to make sure that you at least review the Courts of Justice Act because if there is no other statute that gives you the right of appeal then you must find that right of appeal in the Courts of Justice Act, which covers all kinds of scenarios.  You need to review that.  You want to make sure that you review the Rules of Civil Procedure.  I have mentioned to you that Rules 61.01 to 63.03 are very important. You must review the Practice Directions.

Practice Directions basically explain and further modify the Rules of Civil Procedure.  They are not contradictory to the Rules but they explain further processes adopted by a specific court. I’ve given a link to the Court of Appeal of Ontario’s Practice Directions: (http://www.ontariocourts.ca/coa/en/info/civfam/civil.htm#3)

If you are appealing to the Court of Appeal of Ontario, you must review the practice directions here before you can take any steps in your appeal because these reviews will allow you to determine what you need to do to make sure that your appeal is heard.

Appeals are complicated; the procedures are complicated.  It requires a lot of research and homework on your part to make sure that you get the procedure right. You want to make sure that you review the legislations carefully. You review the Rules of Civil Procedure carefully and the Practice Directions.

Now appellate process has various steps: notice of appeal; seeking leave to appeal; how do you perfect an appeal—all of these things and what we’ll try to do in our future lectures is that we will deal with each subcategory (sub issue) one by one so that we can give you a clear picture of how to proceed with different steps to make sure that your appeal is pleaded and set out proper.

Thank-you for watching.

The Doctrine of Forum of Necessity – A Jurisdictional Matter

July 23rd, 2020

The Forum of Necessity is a common law doctrine, which can be applied by Canadian Courts in suitable circumstances. Through this doctrine, a Canadian court can take jurisdiction of a matter where ordinarily the court has no jurisdiction. This lecture explains how this doctrine is applied in Canada.

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

 

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

Forum of Necessity is a common law doctrine. It is a very interesting doctrine because it allows a court, which ordinarily does not have jurisdiction over a case to take jurisdiction of that case because of the necessity of the circumstances.  What does that exactly mean we will explain that in this lecture.

This lecture is for educational purposes only.  If you have any specific questions about your case, you should contact a lawyer or a paralegal or the Law Society of Ontario.

When you believe that you have a claim against another party one of the 1st questions you have to decide is which court has the appropriate jurisdiction to deal with your case.  Generally speaking it is a straightforward matter. For example, if you are involved in an accident in Ontario all parties and witnesses were in Ontario, then it makes sense for the Ontario Court to have jurisdiction.  You will commence an action in Ontario.  This gets complicated, especially, in this day and age where mobility across jurisdictions is very common. For example, you are a resident of Ontario and you buy a vacation package from a company that is based in California to go to the Bahamas for a week.  When you are in the Bahamas you suffer some injuries due to the negligence of the resort that you are staying at.  You come back to Ontario and you want to bring a court action against the party—the resort in the Bahamas. What place has the appropriate jurisdiction to deal with your matter? Is that the court in the Bahamas? Is that the court in Ontario? or Is it the court in California?

In this specific example, when you have purchased a vacation package, most likely there is a contract that goes with your purchase and in the fine print of that contract you will find that the contract specifies which jurisdiction will have the exclusive right to have the matter adjudicated there. Most likely, in this particular example, the contract would say that all disputes arising from the purchase of your vacation package would be adjudicated exclusively in California—that may most likely happen.  But in these scenarios where the disputes are happening across multiple jurisdictions because a party resides in one place; was visiting another place; the party who was involved in the action (in the dispute) was from a 3rd jurisdiction, the issue of jurisdiction becomes live and this is one of the things that lawyers have to decide whether the right jurisdiction has been addressed in your case.  

In this lecture we’re dealing with one specific part of the jurisdictional debate which is a complicated area of law and is covered under Conflict of Laws and Forum of Necessity is only but one doctrine that deals with the issue of jurisdiction.  The Forum of Necessity essentially says:

Where there is no other forum in which the plaintiff can reasonably seek relief, there is a residual discretion to assume jurisdiction.”

This is very broad language. What do we mean by reasonably seek relief? How does the court exercise this residual discretion?  

Let’s look into this by way of some of the court cases in Canada so we can understand how the courts in Canada have applied this concept / this doctrine Forum of Necessity of exception.  There are 3 examples given in Canadian cases where the Forum of Necessity can be exercised. One is if there is a breakdown of diplomatic, commercial relationship with a foreign state; Two: where there is the need to protect a political refugee; and Three: where serious physical threat if the debate was to be undertaken before the foreign courts.  These are 3 examples given in a Canadian case where the Forum of Necessity discretion may be exercised.  This is not an exhaustive list. This is an example given by the court—where the court may consider it appropriate to exercise their discretion and take the jurisdiction of that matter under the Forum of Necessity.

Let’s look at some of the cases where the Forum of Necessity exception was granted in Canada.  There are, literally, 3 cases so far in Canada where this exception was granted.  This gives you a sense of how narrow this exception is and how rarely it is granted by the Canadian courts. The 1st case is called Bouzari v. Bahremani; 2nd is Josephson v. Balfour and the 3rd case Mohammad v. Tarraf (which is literally a case that came out from the Superior Court of Ontario a few months ago).

  1. Bouzari v. Bahremani: In this case the defendant is the son of a former Iranian President, Hashemi Rafsanjani.  The plaintiff claimed that the defendant tortured the plaintiff in Iran or instigated the torture of the plaintiff in Iran. The plaintiff became a Canadian citizen. He wanted to bring a court action in Ontario. The defendant had no relationship with Canada; he had never been to Canada; in fact he was denied a visa entry to Canada when he had applied for it previously.  There was no real or substantial connection of this case to Ontario because every disputed issue had occurred in Iran and the defendant had no connection with Ontario.  When the court reviewed this case it applied the 1st test which is called the real and substantial connection to Ontario and found that there was no connection to Ontario whatsoever.  Then the court looked at the Forum of Necessity and decided that in this specific case the Forum of Necessity had the application and it granted the jurisdiction to the plaintiff and granted, in fact, the default judgment at the 1st instance.  Now the claim (this case) became complicated (there were a few cases. I have given you a link for these cases that you can review on Canlii):

https://www.canlii.org/en/on/onsc/doc/2013/2013onsc6337/2013onsc6337.html?resultIndex=4

            https://www.canlii.org/en/on/onca/doc/2015/2015onca275/2015onca275.html?resultIndex=2

But what happened was in the 1st situation the court granted the Forum of Necessity and granted the default judgment. Then the defendant brought a motion to set aside the default judgment. It was set aside. Then the defendant argued that the appropriate jurisdiction for this case to be argued is England not Canada.  Both parties agreed that Iran was not the appropriate place to argue this case. At the 1st instance, the motion judge denied the defendant’s position and said that Canada had taken jurisdiction and Canada was the appropriate forum.  At the Court of Appeal level, the Ontario Court of Appeal overturned the motion judge’s Decision and then granted that Canada was not an appropriate forum and England was indeed the appropriate forum for this case.

The thrust of my point today is that at the 1st instance the default judgment level, the motion judge did in fact apply the doctrine of Forum of Necessity and granted the Forum of Necessity jurisdiction to Ontario. 

  1. The 2nd case, it’s also quite interesting it’s called Josephson v. Balfour. This case / this action was commenced in British Columbia. Both the plaintiff and the defendant were Idaho residents they were visiting Canada (British Columbia).  They were playing golf at a golf course in British Columbia. The defendant was driving the golf cart in which the plaintiff was sitting and at some point the plaintiff falls out of the golf cart and gets injured. He was treated in the British Columbia Hospital and then later on transferred to Idaho hospital where he received further treatment. The plaintiff commenced a court action against the defendant in British Columbia and then the defendant claimed contribution / indemnity from the hospital and doctors in Idaho because the defendant believed that those hospitals and doctors exacerbated the plaintiff’s injuries or were negligent professionally (negligent in the treatment of the plaintiff) and therefore the defendant sought contribution and indemnity from them.

 

 Because the plaintiff was treated in Idaho (by the hospitals and by Idaho doctors) ordinarily the defendant should issue a claim in Idaho for contribution indemnity damages.  But in this specific case the defendant could not commence a claim against those hospitals and doctors in Idaho because the defendant himself was not a patient of those doctors or that hospital.  Idaho law did not allow a non-patient to sue the doctor or hospital.  The plaintiff was not interested in suing the hospital or doctors himself.  What to do in that case?  The defendant brought a 3rd party claim in British Columbia against the doctors and hospital of Idaho. Then court had to decide whether it has jurisdiction or not.  Obviously, Idaho hospital and doctors argued that the court had no jurisdiction over this matter.  In a final decision the court granted the exceptional Forum of Necessity and allowed the jurisdiction of the British Columbia court in this matter. 

This case again had many twists and turns. The trial was scheduled and the plaintiff then brought a motion to argue that his main action should be severed from the defendant’s 3rd party action because the trial was already scheduled and if the matter was to proceed then the trial will be delayed.  The Court of Appeal in British Columbia agreed with the plaintiff and it severed the 2 actions.  It basically said that the main action between the plaintiff and the defendant will proceed while the 3rd party action between the defendant and the 3rd parties i.e. the Idaho hospital and doctors will be stayed until the 1st case is decided.  I’ve provided links with these cases and you’re welcome to review them on line.

  1. Third case was Mohammed v. Tarraf. This is a case where all of the relevant facts occurred in Dubai and Dubai had proper jurisdiction of this case. Plaintiff and Defendant were business partners in a joint venture. The Defendant was supposed to make some payments to the Plaintiff. He did not do so and instead he threatened the Plaintiff, coerced the plaintiff’s family.  The defendant had relationship with the royal family of Dubai.  He caused the plaintiff and his family to be held by the security forces; he caused their utilities to be cut off from their residence; he caused the plaintiff’s children to be expelled from their school and so the plaintiff along with his family immigrated to Canada as refugees.  Then he brought this action in Canada against the defendant and argued that he could not go and seek a proper and fair trial in Dubai. He feared for his safety. In that case the court reviewed all of the evidence and granted the Forum of Necessity in this case.

Cases where the courts have not granted: I’ll give you some examples where the court refused to grant Forum of Necessity. In one case parties argued that they were unable to obtain counsel in the US; the courts said that doesn’t matter, you will have to go and argue this case in the US.  We will not grant you a Forum of Necessity in Canada. Similarly someone argued that they could not obtain counsel in Australia; someone argued that they had a personal injury claim in New York but they could not proceed with the claim because it was statute-barred due to the limitation period in New York; someone else argued that the trial was too expensive in the US; another party argued that they could not commence a family law dispute in Trinidad because there was high crime rate and risk of personal safety. On these 2 issues the evidence was controverted and therefore the court did not grant the exception. Someone argued that the trial was too costly and inconvenient in Italy, etc. These are examples of cases where the court refused to grant an exception; refused to grant a Forum of Necessity exception and you will find a lot of cases where parties have tried to argue Forum of Necessity and the court has not granted it.

In essence what you want to remember is that this doctrine exists but it is rarely granted and applied only in exceptional circumstances.

Thank-you for watching.

Discovery of Documents from Non-Parties – Ontario Civil Procedure

July 23rd, 2020

You may be a party to a civil action where some of the relevant and important documents to your case are in the possession of a non-party. This lecture explains how to obtain relevant documents from a non-party in a civil action in Ontario.

Link to relevant Rules: https://www.canlii.org/en/on/laws/regu/rro-1990-reg-194/latest/#PRODUCTION_FROM_NON_PARTIES_WITH_LEAVE__307298

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

 

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

You may be involved in a court action in Ontario in which some of the important and relevant documents to your case are in the possession of a non-party. A non-party is a party that is obviously, not part of your legal proceeding as a party.  It’s not a defendant, it’s not a plaintiff; it’s not a named 3rd party. It is not part of your court action—it is someone who is unrelated to your court action as a party.  That person (that party) has some documents which are crucial to your case and you want those documents to be produced. You want to get those documents so you can use them as evidence in your trial in support of your case.  How do you go about getting those documents? Today’s lecture explains how this can be done through Ontario’s Rules of Civil Procedure.

This lecture is for educational purposes only.  If you have any specific questions you should contact a lawyer or a paralegal or the Law Society of Ontario for any referral.

I will explain today’s Rules by way of an example.  I will take the example of a defamation case. Let’s say you have sued a party for making defamatory statements against you.  Your understanding is that some of the defamatory statements were made in writing to a non-party.  The defendant may have sent an e-mail, a Twitter posting, a Facebook message or a text message of any kind and that documentary evidence contains defamatory statements against you.  You want those defamatory statements (that document) to be produced to you so you can use it at trial.  Obviously, you are entitled to get that document from the defendant through the discovery process.  This may be a situation where the defendant may not have that document.  For example the defendant may say that the e-mail was deleted a long time ago and they don’t have any possession of that e-mail.  They may even deny the existence of such an email or such a document but you know that a non-party does have that document and you want to get that document because it is relevant to your case at trial.

This process of discovery of that document is part of the larger process of discovery in a court action. If you don’t understand what a discovery process is, I do have 2 lectures on this topic which will give you a sense of what the discovery process is and how do you get the best results out of the discovery process by getting all the relevant documents (producing all the relevant documents) and obtaining all the relevant documents.  The Rules that deal with the discovery process in the Rules of Civil Procedure are Rules 29.1.01 to 33.08. You can read those rules to understand fully what the discovery process is and watch my lecture on this.

Today we are dealing within the discovery process—the specific issue of production from a non-party.  Obviously, you will try and contact the non-party and request for the production of this document—a copy of that document directly from that party. You can send them an e-mail, make a phone call or write a letter and ask for that.  If they’re provided to you then that’s fantastic—you have a copy of that document. What if they refuse to give you that document?

Then your option is to bring a motion under Rule 30.10. This motion will allow you to get a court order from the court that will compel the non-party to give you the document which is relevant to your case.  In some circumstances the non-party may be willing to give you the document but they will give you the document only if you get a court order.  This may be a scenario where the non-party may respond to you and say that they don’t want to offend the defendant they want to have a good relationship or they have another relationship with the defendant which could be jeopardized by them voluntarily giving you that document but they’re okay to give you the document if there’s a court order—because then they’re simply complying with a court order. In that situation, they don’t have a choice.  That may be a situation where bringing a motion (getting a court order) may be a better way of proceeding to get the production of that document.

What would the court consider in giving you / issuing that order? There are generally 2 things: Number one: the document has to be relevant to a material issue in your case. If it is not a relevant document, the court will not give you the order.  You will have to show the court how that document helps your case; how it is relevant to your case and how if you have that document you will be able to prove one or some of the important points of your case. Secondly, the document should not be privileged.  Privileged document in a very loose way—document can be considered a confidential document.  Privileged document has a specific definition. I may be able to do another lecture and explain to you what privilege documents are but I’m not covering that in this lecture. Some of the privileges could be litigation privilege or solicitor client privilege (privileged documents or documents that are exchanged between a lawyer and his or her client).  There are documents that are privileged meaning that they’re not available to the court unless the court reviews the documents and orders that either they’re not privileged or despite their privilege they must be produced.

If the party (the non-party) says that the documents are privileged, then the court has the power to inspect the documents.  You won’t see the document.  The non-one party will bring the document to the judge and the judge will review the document and determine (a) whether it’s privileged or not; (b) whether it ought to be produced even if it’s privileged. The court may even make an order saying that parts of the document may be redacted and the remaining can be produced as part of the production in this discovery process.  That is all in the power of the court.

What you want to remember is that bringing this motion the procedure to follow is the same that is specified in Rule 37. Rule 37 is a broad Rule that explains to you the process of bringing all kinds of motions in the court system. I have done a few lectures on motions in my channel, so please review those if you don’t understand how to bring a motion in the court system.  The main thing that you want to keep in mind is that if you’re bringing such a motion then you must serve the notice of motion on all parties—all parties that are part of your court action and also serve the notice on the non-party, on which you are seeking the order.  In essence, what you want to remember is that discovery is a crucial process in the process of fighting your case because this process allows you to gather all the evidence that you need to prove or disprove the case.

If you want to prove the elements of defamation, you will need to show what evidence indicates or confirms that there were real defamatory statements made by the defendant against you.  You will have to get all the documents—which is why the discovery process is important. The main thing that you want to get from this lecture is that even if you find that a non-party has documents that are relevant to your case you should not worry about it. This is the process that you use to obtain those documents from the non-party and are able to fight your case in court.

Thank-you for watching.

The Complicated World of Appeals and Judicial Reviews

July 23rd, 2020

If you wish to challenge an unfavourable decision of a court, administrative tribunal or a public body, you need to determine whether this challenge will be done by way of an appeal or a judicial review, which are two distinct processes. This lecture explains the basic difference between an appeal and a judicial review.

Useful Links:

For Judicial Review: Judicial Review Procedure Act: https://www.canlii.org/en/on/laws/stat/rso-1990-c-j1/latest/rso-1990-c-j1.html Statutory Powers Procedure Act: https://www.canlii.org/en/on/laws/stat/rso-1990-c-s22/latest/rso-1990-c-s22.html

For Appeals: Courts of Justice Act: https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/ Rules of Civil Procedure: https://www.canlii.org/en/on/laws/regu/rro-1990-reg-194/latest/ Practice Directions – e.g.: Court of Appeal for Ontario Practice Direction: http://www.ontariocourts.ca/coa/en/info/civfam/civil.htm#3

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

 

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

If you have received an unfavorable decision from a court, tribunal or another administrative public body and you want to appeal that decision, you come to this complicated world of appellate review. The appellate review world is complicated because the procedure for the appellate review is complex and many experienced lawyers cannot agree on what the correct process is and sometimes many judges cannot agree on what the correct process should be with respect to a specific appeal. In this lecture we will try to explain broadly what this appellate review process is and give you a general understanding so that you can start the process of doing your own research with respect to the specific issue that you may be dealing with and you wish to appeal that particular decision.

We begin with a disclaimer that this lecture is only for educational purposes and it provides you a very broad overview of the law relating to the process of appellate review. If you have any specific questions regarding your own issues you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

1st and foremost I want to explain to you that there is a significant constraint on the appellate review process and this constraint is: “an appellate review is a review of error not a review by rehearing”.  This is important to understand because many people have this misconception that if they are appealing a decision, it somehow amounts to a re-hearing of the entire case/a retrial or another trial or reconsideration of the entire decision by an appellate body.  That is not the case.  The most important thing that you want to understand is that when you are appealing a decision you are basically telling the appellate body that the lower court judge or the decision-maker has actually made an error.   You have to explain that error.  On that basis the appellate court will decide whether that error was made and whether that error requires that the decision be set aside or overturned.

The scope of the appellate review is very narrow and this is covered under the topic of standard of review.  I will do a separate lecture on “standard of review” because that is another complicated area of law.  We will get into the details of how a court reviews a decision and what is the criteria in overturning or setting aside a decision.  For now what you want to understand is that when you are asking an appellate body to review a decision, the appellate body is starting with the primary assumption that the decision made by the decision-maker was correct.  Then the burden is on you to show how that decision was incorrect and then what kind of remedies you may be entitled to.  So it is not really a re-review of the hearing; it is not another trial—it is simply a review on very, very narrow grounds—the decision that has already been made.

We will talk about appeal versus judicial review. These are two terms. These are not two different names for the same process.  These are complementary but different processes.  They have different requirements that you should follow.  The 1st question that should come to your mind is whether the decision that you are going to challenge or you wish to challenge—is it subject to a judicial review,or whether you may be able to appeal that?  

In most cases you are appealing a decision where the decision was made by a court or in another administrative tribunal. For example, you had a case in small claims court in Ontario. You received an unfavorable decision in that case. Your ability to challenge that decision would be by way of an appeal and not by way of a judicial review.  In another example, if you have faced a decision before a human rights tribunal, that is unfavorable, then you do not have the right to appeal that.  You will have the ability to seek or apply for judicial review. 

Appeals usually deal with the decisions of the court or a tribunal’s decision whereas judicial review mostly deals with the decisions of administrative tribunals or public.  Some administrative tribunals may provide in their legislation that you may have a right to appeal, while other administrative tribunals, in their relevant statute may provide that you may be able to apply for a judicial review. We will talk about how to figure out whether a specific decision of an administrative tribunal requires a judicial review.  With respect to public bodies, public bodies could be in public institutions for example, hospitals or universities which are considered public bodies.  For their decisions (if you choose or if you wish to challenge a decision of a hospital or a university) you may be able to challenge that decision by way of a judicial review. It will not be done through an appeal process.

For you to determine whether your specific case requires following the appeals process or judicial review, you must review the relevant legislation and determine what is the appropriate process in the circumstances of your case.  

Let me give you some examples of cases for judicial review. Let’s say you are facing a decision of the Landlord and Tenant Board which was unfair.  You were either a tenant or a landlord in the specific dispute and you received an unfavorable decision. The question for you is whether you can appeal that decision or you will have to ask for judicial review and the answer lies in Section 210(1) of the Residential Tenancies Act, which basically provides that an order of the board is subject to an appeal. You can make this appeal to the Divisional Court within 30 days. The appeal is limited only on a question of law.  This part about the grounds for appeal being question of law is subject to the “standard of review” that I talked about.  We will discuss that in a separate lecture because again that’s another complicated area of law with respect to the criteria that the appellate court will apply (in this case, the Divisional Court), in determining whether it can make a decision on the specific appeal that you have submitted to that court.

Another example: In case of a human rights application, you face a decision of the Human Rights Tribunal in Ontario which is unfavorable to you and you will like to challenge that decision. Can you appeal that decision? Or apply for a judicial review?  The answer lies in Section 45.8 of the Human Rights Code, which states that the Tribunal’s decision is final and is not subject to appeal. Your only option with respect to the Human Rights Tribunal’s decision is to apply for a judicial review.  That decision can only be altered or set aside if it is considered “patently unreasonable”.  This wording “patently unreasonable” relates to the “standard of review” that the appellate court will apply in making a decision on your appeal.  

As I mentioned you will have to look at the relevant legislation in determining whether your specific issue requires a judicial review or the appeal process. I have provided some relevant legislations that may be helpful to you.

First of all you will have to find out what is the most relevant legislation that is dealing with the subject matter of the underlying issue that you have. For example, if it was a human rights application, then your relevant legislation is the Human Rights Code.  If it was a landlord and tenant dispute, then the Residential Tenancies Act may apply. If it’s workplace safety insurance issue, then you’re dealing with the Workplace Safety Insurance Act.  There are other legislations that are dealing with certain specific matters.  You will have to determine what legislation and what statute specifically deal with your issue.

Second, if any your issues are not related to a specific statute, it may just relate to common law—in which case it will not be subject to a statutory provision for an appellate or judicial review process.  But if there is a statute that is relevant, then you must review that legislation to understand what does the legislation say about your ability to judicially review the case or appeal.

For judicial review in Ontario you would like to review the Judicial Review Procedure Act. As the name implies, this legislation explains various processes for applying for a judicial review and the procedure that needs to be followed. Another important legislation that you should review is called Statutory Powers Procedure Act. For appeals you would like to look at the Courts of Justice Act, the Rules of Civil Procedure and Practice Direction of the specific appellate court where you are applying for the appeal.

I’ve given an example of the Court of Appeal for Ontario—Practice Direction, which can be found on these links.  I have provided the names of some of the legislations that will be helpful for you in determining whether your case warrants a judicial review application or whether you may be able to apply for appeals.

Once you have determined what your case is, you shall proceed with judicial review or an appeal you will have to now deal with further complicated matters about what is the procedure for appeal? And, what is the procedure for judicial review?—which we will try to cover in separate lectures. I’m hoping to provide first a lecture on the appeal process in courts, followed by the judicial review process.

All in all, what you want to understand is that the appellate process is quite complicated procedurally.  You must carefully review the legislation to understand what process applies in your case. You usually have very limited time with respect to the appeal and judicial review process—which is sometimes as less as 15 days from the day that the decision (the underlying decision) was issued.

If you don’t understand any of these legislations, it may be worthwhile to talk to a legal professional so that at least you can choose the right mechanism through which you should apply for your review of the decision that you challenge.

Thank-you for watching and in the next lectures I will try to cover the topics of the procedure for the appellate review in courts and also the standard of review.

Addition, Deletion, or Substitution of Parties – Ontario Civil Procedure

July 22nd, 2020

When a civil proceeding is already ongoing, sometimes you need to add, delete or substitute a party. This can be done by following specific Rules in the Rules of Civil Procedure. This lecture explains how a party can be added, deleted or substitute once the pleadings have been filed with the court.

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

 

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

Sometimes when a proceeding is ongoing in a civil court in Ontario you may realize that you need to add, delete or substitute a party to the proceeding. If you need to do so, you have to follow specific Rules that are contained in the Rules of Civil Procedure.  Today’s lecture will cover those rules and explain to you how you can add delete or substitute a part

This lecture is for educational purposes only. If you have any specific questions about your case you should contact a lawyer or a paralegal or the Law Society for Ontario for a referral to one of the legal experts.

We will specifically discuss Rules 26.02 and 26.03 with respect to the addition, deletion or substitution of parties you may notice by reading the rules that Rule 26 deals with all kinds of issues regarding the amendment of pleadings. Now Rules 26.02 and 26.03 apply number one to all parties – whether you are a plaintiff, defendant, 3rd party applicant or respondent. As long as you are a party to a proceeding you can follow these Rules to make the changes regarding the addition, deletion or substitution of parties.  Secondly, these Rules apply in the same manner to all pleadings whether it’s a statement of claim, statement of defence, application, response to an application, 3rd party claims, cross claims – whatever the nature of the pleadings.  

We will explain the application of these Rules by an example.  Let’s say that you have issued a statement of claim against 2 defendants: number one ABC Inc. and number 2 CDE Inc. These are the 2 defendants named in your statement of claim. You want to add a party; delete a party or substitute a party—we will cover these topics one by one.

Adding a party:  Lets say you realize that XYZ Inc. is also a company that should have been a defendant in your claim. You have discovered some new facts that explain to you that XYZ Inc. should be a proper party.  Now you want to add a party.  You have already issued your claim and you have all already named the 2 defendants and XYZ Inc. was not a party at that time. How do you go about adding XYZ Inc.? 

There are 2 ways: number one you get a consent of all parties including the party that needs to be added (that means you get consent of ABC Inc, CDE Inc. and XYZ Inc.). You get that consent and with that consent you file the amended pleading with the court office.  The 2nd option is you bring a motion.  You obtain leave of the court. You bring the motion before a judge or a master depending upon your jurisdiction and then the master or judge will approve your pleadings. The motion needs to be served on all parties for you to be able to argue before a master or a judge. There are 2 ways to do that consent of all parties, including party to be added or obtain leave of the court by way of a motion.

If you want to substitute a party:  For example you realize that CDE Inc. was not the right name of the party it should have been XYZ Inc. And so you want to substitute the party you want to remove CDE Inc. and substitute it with XYZ Inc. How do you go about doing that?  Again there are 2 ways to do that: number one you get consent of all parties including the party to be substituted (in this case again it’s ABC Inc., CDE Inc and the party to be substituted as XYZ Inc.)  You get consent of all parties. You file it with the court.  Or you get the leave of the court like in the last scenario.

If you want to delete a party: You realize that CDE Inc., which was originally named in your claim should not be a defendant in this action and you want to remove that party—you want to delete that party—how do you go about doing that? You have 2 ways to do that: you get consent of all parties (ABC Inc. and CDE Inc). Or you bring a motion and obtain the leave of the court to do so.  

There are 2 Rules that allow the court to amend your pleadings. 1st is Rule 5.04(2) which gives power to the court to add, delete or substitute a party at any stage in the proceedings.  Once the proceedings are filed you can add, delete or substitute a party up to trial—at any stage in the proceedings—by following the Rule that we have just discussed. If you realize that a party needs to be added or deleted or substituted just before the trial you are allowed to bring this motion or obtain the consent of parties and go ahead and do that and the court has the power under Rule 5.04(2) to grant you that amendment.

Rule 37.02(3): This specific Rule gives power to the court’s registrar to add, delete or substitute a party when you have the necessary consent filed with the court. In this case when you have consent of all parties you don’t need to go in front of a master or a judge. You simply go to the window at the court office and you file your documents with them.  The registrar will approve your amendment of the pleadings.

The thing that you want to keep in mind is that if you want to add, delete or substitute a party once the pleadings have been filed, then the only way to do that is by following the Rules that we have just discussed. Once the amendment is granted you have to serve on all parties the amended pleadings.

Hopefully this gives you a sense of how to add, delete or substitute a party if you come across this scenario in your specific action or application and you follow these rules and get your amendments done.

Thank-you for watching.

Restrictive Covenants in Employment Contracts: Non-Competition

July 20th, 2020

This lecture explains restrictive covenants in an employment contract and specifically explains the enforceability of a non-competition clause.

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

 

Show Notes:

N/A

Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

Today we will talk about restrictive covenants in an employment contract.  We will explain to you what a restrictive covenant is; what are different kinds of restrictive covenants that are usually seen in employment contracts.  Then we will specifically talk about non-competition clause in an employment agreement.

This course is not legal advice.  This is only for educational purposes. If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or contact the Law Society of Ontario for a referral.

What is a restrictive covenant?  Very simply a restrictive covenant limits an employee’s ability to do something either during employment or at the end of employment (after employment for a certain period).  It is restricting an employee to do certain acts.  What are those acts?  Those are contained in the specific restrictive covenant that will be in the employee’s contract.  What are some of the common restrictive covenants? The most common one is a non-competition clause.  The other one is a non-solicitation clause which is quite common in employment contracts.  Confidentiality clauses are common in employment contracts.  If you are dealing with any intellectual property of the employer then you may see restrictive covenants relating to intellectual property.

What is the non-competition clause? It simply limits competition with the employer.  If you are an employee, a non-competition clause basically limits your ability to compete with your employer while you are employed and even after your employment has ended either by resignation or even by termination of employment. Most of the non-competition clauses do not talk about non-competition during your employment because that is, sort of, given if you compete against or compete with your employer while you are employed that is simply a breach of your employment contract.  You have an underlying implicit duty to be faithful and loyal to your employer and work in the best interest of your employer.  If you are competing with your employer then that immediately is ground for termination for cause and maybe an action against you for damages.

Most of the non-competition clauses deal with what happens after your employment has ended but essentially what the non-competition clause is doing is limiting an employee’s ability to compete with the employer.

An example that I can give you here is: let’s say that you’re a dentist and you work as an employee or as a dentist for a specific company.  They may have other dentists at that location but you don’t own that business. You are an employee in that business or an independent contractor (in specific circumstances of your case).  Let’s focus on an employment situation.  Let’s say you’re an employee of that dentistry practice.  Your employment contract may contain a non-competition clause that may limit your ability, for example, that once your employment is ended to start your dentistry practice next door or within 500 meters of the previous employer’s dentistry practice. 

The underlying reason obviously, for the employer to have such a clause is that the employer has brought you in – maybe has given you the opportunity to work and learn your skill or refine your skills, interact with customers and whatnot.  Having acquired those skills and having acquired those relationships, the employer does not want you to walk out and then compete with the employer and diminish the employer’s practice.  That’s one of the underlying rationale behind why you may see a non-competition clause in your employment contract.  Non-competition clause is limiting an employee’s ability to compete with the employer in its essence.

What are some of the underlying legal principles with respect to non-competition clauses? Let’s go over these one by one.  The fundamental legal concept that is at play here with respect to non-competition is that there are 2 legal principles: one is freedom of trade.  We, in our democratic and capitalist society encourage competition; we encourage that people are entitled to earn their living in any legal manner that they deem fit and that may include competing with others.  There is the value of trade freedom, of your ability to earn your living the way you would like to, as long as it’s legal.  That’s one of the principles. 

At the same time there’s another legal principle that businesses should be able to protect their legitimate business interests.  One of the legitimate business interests may be that you have hired someone to work for your company, you have trained them, you’ve given them knowledge, or given them ability to meet customers, know your customers and whatnot.  There is a legitimate interest maybe at play for that particular company or employer that you should not walk away and then take away their business. Those are the 2 competing principles that a court is considering when a court is deciding whether to enforce a non-competition clause or not.

With respect to the enforceability of non-competition clauses, I can tell you as of today, April 24th 2019, courts in Ontario and in Canada are extremely reluctant to enforce a non-competition clause.  The general weight of our jurisprudence, as it stands today, is that if there is a non-competition clause the courts generally do not like to enforce.  They will find ways to determine that the clauses are enforceable. Even though the court will rule upon it, remember, that we believe in freedom of contract.  If you have agreed to a contract the court is bound to enforce that contract unless that contract is not in breach of law, in general or a specific statute.  There’s a freedom of contract.  If you agreed to a non-competition clause, you’re agreeing to it. 

For the court to not find it enforceable court has to use some other legal principles rather than saying that even though you signed it we’re not going to enforce it.  No, that’s not the reason why the courts will not enforce it. The court will have to find some other legal principles to say that even though the clause is there we’re not going to enforce the clause in its form because of certain legal principles and we’ll talk about it in our next slide.

Another legal principle for a non-competition clause to be enforceable should be the clause—the way it’s drafted—it should be narrowly drafted; it has to be very clear, there shouldn’t be any vagueness or ambiguity in the clause and the clause should be reasonable.  Those are the 3 things that the court will consider when reviewing a clause for its enforceability.

What is the legal framework when there is a case before a court? –  in which the employer or the former employer of that employee comes to court and says that here is the contract, it was properly signed, was properly executed, it is enforceable and here is a non-competition clause.  We want the court to enforce it because our former employee is now competing with us. What is the legal framework that the court will use to determine whether that clause in forcible or not? Number one, the court will look at the geographical limit in that specific clause.

Let’s take our dentistry example. Imagine for the sake of our example that this specific dentistry practice was based in downtown Toronto. There’s one office/one location based in downtown Toronto. Most of the clients (most of the patients) that come to that dentistry practice are also located in downtown Toronto. That’s how that practice is operating. The non-competition clause says that you, the employee, cannot compete against this dentistry practice anywhere in the GTA—let us say it is nowhere within the Greater Toronto Area can you operate another dentistry in competition with us.

The court will then examine this geographical limit very closely. Remember the underlying principle is if they can find it unenforceable they will try to make it unenforceable.  Is that geographical limit reasonable? Whether it’s clear, number one.  If you say, this is the radius, this is the Greater Toronto Area—whatever the term that you’re using, the court will see whether it’s clear, it’s unambiguous and then whether it’s reasonable.  In this case if most of the business that is coming to that dentistry is within, let’s say, 5 square kilometers in downtown Toronto, then the court will say why is it reasonable for you, the employer to say that you cannot compete against me in the entire GTA.  That’s fundamentally unreasonable. The court may say that there are already let’s say 20 to 30 dentistries that are already in competition with you within the 5 square kilometers and you imposing a limit of 30 to 50 kilometers for the entire GTA is unreasonable.

In that case the court is now closely watching whether the limit that you’re imposing is reasonable to begin with.  If that’s not reasonable as most of your clients are within 5 square kilometer radius, then any limit that is beyond 5 kilometer radius is going to be unreasonable. The court will throw that clause out because the geographical limit is unreasonable.

Then the court will look at the temporal limit—for how long is the employee required not to compete against the employer.  Let’s say in this dentistry practice example: You are the dentist. You work with that dentistry for 5 months but the temporal limit in your non-competition clause says that you cannot compete with that dentistry for 2 years.  Now is that a reasonable time limit with respect to the restraint on your ability to compete with the employer? The court is then going to closely examine what should be an appropriate temporal limit. 

Let me give you an example. If you’re saying that you cannot compete with me for 2 years what you’re saying is that look, even though you know my clients, you know everybody and you know my business in the 4 months that you dealt with, I cannot sustain my business for 2 years if you compete with me.  2 years is a long time.  In some ways that suggests that you are so vulnerable and your ability to keep your clients as your clients is so weak that you know even though that dentist has left you a year ago, you’re still worried that that dentist can take away your client.  Do you even deserve that business because you cannot compete in an open market?  You know there are all these considerations that the court will consider but essentially the court is determining whether the temporal limit that is imposed in the non-competition clause is reasonable and if it’s not reasonable it gets thrown out.  As an employer, you can put in 5 years / 10 years / lifetime or whatever you want but if the temporal limit is not reasonable your clause is not going to get enforced.

Then the 3rd thing that the court is considering is what specific activity or activities are you prohibiting the employee (the former employee) not to do.  What is it that you’re saying you should do / shall not do? One example could be that the clause may say you cannot open another dentistry practice, but what about dental hygienist practice? What if the dentist wants to just open a dental hygienist clinic and not provide services as a dentist but as a dental hygienist or just hire a dental hygienist to provide those services and run that business?  Is that covered in that non-competition clause? Is the dentistry practice the way it’s defined in the contract include dental hygienist practice? If it does, then the question is, is that reasonable? And the court may say no, that may not be reasonable.  This former employee was working as a dentist, never competed with a dental hygienist business and so it is unfair / unreasonable for you to limit the dental hygienist business.  What if the employee just wants to open a shop which sells dental equipment?  Is that in competition?  The court is looking at exactly what is it that the non-competition clause is saying—that the employee cannot do and is that clear; is that reasonable; and if it’s not then the whole non-competition clause gets thrown out.  This is how a court will examine a non-competition clause and then determine whether to enforce that clause or not.

Let’s look at a non-competition clause just for the sake of it.  You can see what kind of non-competition clauses are out there. You may have a similar or somewhat different clause.  There’s no standard language for this.  I just picked one to give you a sense of what a clause can look like.  Here’s a clause:

You will not, for a period of one year (the temporal limit here is one year) following the date of your termination or resignation (it covers termination/dismissal with cause without cause or resignation—in any circumstances), the time period is one year, what is it that you are not allowed to do as an employee—directly or indirectly (key words) in any manner whatsoever including without limitation either individually or in partnership or jointly or in conjunction with any other person or persons as principal, agent, shareholder, associate or in any other manner whatsoever carry on or start your own dentistry practice anywhere within a radius of 10 kilometers of the company’s premises;

And, or directly or indirectly in any manner whatsoever including without limitation work as an agent, associate, employee, independent contractor or in any other manner whatsoever in dentistry practice anywhere within a radius of 10 kilometers of the company’s premises.

This is a pretty strict clause.  It limits your ability to start your practice either directly or indirectly or even work as an agent, associate, employee or any kind of contractor of another dentistry.  Is that cause reasonable? The court is going to look at it and then look at it in minute detail and then determine whether the temporal limit is correct/ is reasonable; whether the geographical limit is reasonable and whether what activities are being prevented is that reasonable?

Another common part of this clause is this: “you acknowledge and agree that the company may apply for or have an injunction.”  Injunction is really that if you start a competing business along with an employer, can the employer literally go to court bring a motion for injunction and stop you right in your tracks? This clause is saying basically that if you do compete with us, we’re going to go bring an injunction against you and then stop you right there and then seek damages for and the legal costs and whatnot. 

Then it further goes on to say, “if any covenant or provision herein is determined to be void or unenforceable, in whole or in part, it shall not be deemed to effect or peril the validity of any of the other covenants or provisions, and such unenforceable or invalid portion shall be severable from the remainder of this agreement.”  This is a typical clause.  If the court finds one clause to be unenforceable the other clauses should continue to be enforceable. “Notwithstanding, the foregoing, if, in any judicial proceeding, any provision hereof is found to be so broad as to be unenforceable, it is hereby agreed that such provisions shall be interpreted to be only so broad as to be enforceable.”

This is trying to say that if the court finds that we put a very broad limit on the geographical scope then whatever interpretation will make it a bit narrower to make it enforceable. Let’s go with that interpretation.  It may not fly in court. But this is the language that you may find in the clause.  And then finally it says that, “you (the employee) acknowledge and agree that all restrictions contained herein are reasonable and valid and all defences to the strict enforcement thereof by the company are waived”.

This is a typical clause and there may be other variations of it. We lawyers spend a lot of time drafting these things because each and every word that is contained in this clause is subject to challenge/is subject to interpretation.  If you want a clause like that to be enforced you have to be very careful in how you draft it and to make sure that it is appropriately drafted so that it could be enforced in court.

In conclusion, what is it that you want remember? It is not easy to enforce non-competition clauses.  Why do we lawyers even put it in the employment contracts when we draft them? Or why do companies put them in those agreements? For a variety of reasons: (1) one reason is simply strategic. It is there as a threat.  You know that there is a clause in there that you’ve signed; it may sound ridiculously broad; It may sound unreasonable but you have signed it.  If you try to compete with the company, we will take you to court.  You will at least, at the end of the day, when you’re before the judge at a trial, you may succeed. But we will drag you into a court fight and you’ll have to spend all this money to prove your case.  That may be a sufficient threat for you to worry about the clause even though when you read it you realize that (based on my lecture) this clause would not have it’s day in court.  At the same time, there are practical implications of getting into a legal fight and you don’t want to be in that situation.

(2)  The other part, if you’re an employee, you want to keep this in mind, this is an important tip for you, when you’re negotiating your employment contract when you see a non-competition clause in your employment contract and you’re a smart guy, you have listened to my lecture and figured out that the clause is not going to be enforceable. Is it even worth it to negotiate with the employer because if it’s a badly drafted non-competition clause, it may be worth for you just to sign it because you know that it’s not going to get enforced. You understand that. If you raise this issue and you say to the employer I don’t want this non-competition clause or the non-competition clause is too broad, then the employer gets into that negotiation and fixes that clause or puts it in a way that is actually going to be enforceable. 

Now you’ve put yourself in a difficult position for the future because now you have not only negotiated a non-competition clause but by raising this issue you have put yourself in a position where the employer has drafted a clause that is actually going to be enforced against you. So you want to be careful even though you read the non-competition clause, you understand it, you’re comfortable that you’re willing to take a risk on this non-competition clause because it’s not going to be enforceable based on how it is drafted—is it even worth to negotiate. Think about that, think about your negotiation power within that deal. If you don’t have negotiation power then you want to be careful about the issues that you raise in an employment contract.

I hope this gives you a sense of what a non-competition clause is; what restrictive covenants are in general. Restrictive covenants are very, very important. Why? Because they limit your ability to do something even when you have left the employment. That’s why when you sign a contract, the most important thing you want to look at is restrictive covenants. What is it that the employer is telling you that you cannot do?  When you have left the employment, you’re not getting paid for that employment, you have to find another job and yet you are bound by an employment contract with a previous employer. Is that something that you want to be worried about? That is something to consider. So restrictive covenants in employment are important. We’ll talk more about this in our future lectures.  We will unpack each and every kind of restrictive covenant and then try to explain them to you in more detail.

Thank-you for watching.

Restrictive Covenants in Employment Contracts: Non-Solicitation

July 20th, 2020

This is the second lecture on the topic of restrictive covenants in employment contracts. It explains the enforceability of non-solicitation clauses.

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

 

Show Notes:

N/A

Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

We are going to talk about restrictive covenants in an employment contract. In this lecture we will cover specifically the non-solicitation clauses. This is our 2nd lecture on this topic.  We have previously posted a lecture which talks about restrictive covenants in general and then specifically deals with non-competition clauses.  If you haven’t watched that lecture it may be a good idea to watch that one 1st; before you watch the non-solicitation because some of the fundamental concepts are covered in more detail in that lecture. We will talk about non-solicitation today and I will briefly talk about some of the basic concepts as well.

This lecture is not legal advice.  It is only for educational purposes.  If you have any specific questions regarding your own issues, you should contact a lawyer or a paralegal or the Law Society of Ontario for anything for a less

What is a restrictive covenant?  It is a clause in your employment contract that limits the employee’s ability to do something during or after employment.  Most of the time these clauses talk about what you cannot do after your employment ends—whether you resign or your employment is terminated. What you cannot do during your employment is generally covered by some of the fundamental principles of your employment relationship. For example, you have an obligation to work in the best interest of your employer and you have a duty of loyalty and fidelity towards your employer.  What are some of the common restrictive covenants? Non-competition: we have a lecture on that. Non-solicitation: we will talk about that today. Confidentiality; and if you have any intellectual property issues with respect to your employer, there may be some clauses with respect to your conduct regarding intellectual property.

What is a non-solicitation clause? Non-solicitation clause limits the employees ability to solicit any of the customers of the employer.  That is one main area often on solicitation. The 2nd main area is it restricts the employee’s ability to solicit any of the employees of your former employer.  Those are the 2 areas that are covered by on-solicitation clauses. 

In our previous lecture we had taken an example of a dentistry practice.  We’ll continue with that example today.  We had said that imagine you were an employee or a dentist; you work for a dentistry practice where there may be other dentists employed as well; you don’t own the business but you are just an employee of that dentistry practice. Now your employment is terminated or you have resigned and you have gone away. And you, for example, in your scenario you have started another business which is in competition with your former employer but you do have a non-solicitation agreement with your former employer. In that situation your non-solicitation agreement may limit your ability to solicit business from the clients of your previous employer or solicit any of the employees. Maybe you like the receptionist at the previous employer and you want to offer a better job and better salary—you may not be able to do that if you have a non-solicitation agreement with your former employer.  

Similarly, you may be familiar with a dental hygienist or other dentists that you want to attract to your business—you may not be allowed to do that.  In most of the cases with respect to securing or safeguarding the business interests of the employer, if a non solicitation clause is properly drafted that is usually sufficient to safeguard any of the business interest of the employer from a departing employee.

What are some of the underlying principles of non-solicitation? They are somewhat similar to the principles of non-competition. What you want to keep in mind is that courts prefer non-solicitation clauses over non-competition clauses.

As I said earlier, in most cases courts believe that if you’re a business and you want to protect your interests (business interests) that could be sufficiently achieved through non-solicitation clauses as opposed to a non-competition clause. A court will prefer a non-solicitation clause in an employment agreement and will enforce it if it is properly drafted and has the correct scope. A court will enforce the non-solicitation clause if it is properly drafted.  The standard that the court uses to determine whether non-solicitation clauses are appropriate is again reasonable standard. Reasonableness is a similar standard that was used in a review of non-competition clauses.  The same reasonable standard is used in the assessment of a non-solicitation clause.  The court will also look towards the wording of the clause to determine whether the wording is clear; there’s no ambiguity; the clause is not vague; it is narrow—it is narrow enough that it protects the interests of the business, yet allows the employee to earn his or her own living through the means that the employee wants to engage in.

What is the legal framework that the court adopts in reviewing and determining whether non-solicitation clauses are enforceable?  It’s similar to what’s in non-competition. The court will look at the geographic limit and closely review and determine whether the geographic limit is appropriate or not.  The court will look at the temporal limit.  We have discussed both of these factors in our previous lecture on non-competition.  You may want to check that lecture if you have not reviewed it. If the scope is too broad, the court will throw the clause out. If the temporal limit is too long or if there is no temporal limit – for example, the clause states that the non-solicitation will continue indefinitely, then the court will definitely throw that clause out and make it unenforceable.

It is important and is slightly different from non-competition—the action that you are not to do is solicitation. The clause should be limited to the act of solicitation. Solicitation is you reaching out to a customer of your previous employer. You reaching out to an employee of the previous employer—that is the solicitation part.  The act should be limited to non-solicitation. You as an employee should not be soliciting.  What that means is, if a previous client of your former employer finds out on his own or her own means that you have started your own business and wants to bring his or her business to you then that’s not solicitation. You are not doing anything to solicit that business.  In that case, accepting that business will be fine. Similarly, if another employee resigns and then happens to apply for a position in your organization, then that may not amount to solicitation. It’s the act of solicitation that is prohibited.  

The court will also closely monitor the scope of the limitation.  What exactly is it that you are not allowed to do?  For example, in case of dealing with previous customers, the clause may say that for a period of one year you cannot solicit “all of” or “any and all of” the customers of the former employer. But the company may be very large and you may have only dealt with a very small segment of the customers and the other customers you may not have dealt with them; you had no relation with them while you are employed; you did not know them directly as part of your employment, is it fair to limit your solicitation to all of the customers that you may have not even dealt with? Or, should it be limited to the customers that you have dealt with?  There could be another way of limiting this – that is to say that you have to not solicit the customers that you had dealt with personally over the last one year of your employment or over the last 2 years of employment. There is further restriction to the act of solicitation and the court may look closely into the language and determine what exactly is being prohibited with respect to non-solicitation and whether that prohibition is reasonable to safeguard the legitimate interest of the employer or the company.

Now let me give you a real example. I’ll take you to a case that was recently, in 2016, decided by the court. Part of it dealt with the non-solicitation. Let’s go there and then we will read it together so that it will give you a real sense of how the courts look into these non-solicitation clauses.  In this case there was a non-solicitation clause.  Let’s see how the court dealt with that.  There’s paragraph 18. By the way this is on Canlii website. You can you can use this name in to search in Canlii and you can find this case. Paragraph 18 says:

[18]    The covenant in the employment agreement upon which Donaldson relies reads as follows:

Mary agrees that in the event of termination or resignation that she will not solicit or accept business (and this is important and I will talk about it) from any corporate accounts or customers that are serviced by Uniglobe Donaldson Travel, directly, or indirectly.

It’s a pretty broad restriction.  It doesn’t even have a temporal limit. How has the court analyzed that? The court says:

[19]           It is noted that this covenant (hereinafter referred to as the “restrictive covenant”) contains neither a geographic nor a temporal restriction on Murphy’s obligation.(there’s no geographical limit, there’s no temporal limit and most likely on that basis the court will in itself throw out this clause and not make it enforceable) It is also noted that the obligation which the restrictive covenant purports to place on Murphy extends beyond an obligation not to solicit corporate accounts or customers that were and are serviced by Donaldson to include an obligation not to “accept business from” such accounts or customers.(when I mentioned that the obligation should be limited to not solicit not that not to accept business because business has a right to go wherever it wants to go.  If someone comes and brings business to you because they like you, because they like your business or because they like your customer service they are entitled to do that. They are not stuck they are not bound with your previous employer. If someone brings you business, you are allowed to accept it. It’s the solicitation part that you are not allowed.  When this clause says that Mary was not allowed to solicit or accept business that makes the clause unenforceable.)

It also purports to extend the obligation not to solicit or accept business, of any nature, from corporate accounts and customers of Donaldson generally, without restricting them to corporate accounts and customers which had been serviced by Murphy during the course of her employment with Donaldson or even which were corporate accounts or customers of Donaldson during her tenure.(You see how the court analyzes the specific clause to figure out exactly what is the nature of limitation and whether that limitation is reasonable or not and in this case the court found that the clause was not enforceable. This is the case name that I mentioned: Donaldson Travel Inc. v. Murphy Et Al, 2016 Onsc 740 (Canlii). You can put it in Canlii and you can get this whole case and read it for your interest.

What you want to remember is that the non-solicitation clauses will be enforceable if they are reasonably drafted and properly drafted. The court will enforce it. The court believes that non-solicitation clauses are sufficient in most of the cases for the employer to protect its interest and non-competition clause may not be necessary. Again, a word of caution from the previous lecture is that when you are an employee and when you are negotiating you should take extreme care in negotiating non-competition or non solicitation clauses. The 1st principle of negotiation is whether you have the leverage in that negotiation. If the employer is imposing an employment contract on you and your position is simply to take it or leave it, then obviously you don’t have any room to negotiate to begin with but again you want to read the clause carefully to see whether the clause is drafted properly or not.  If the clause is too broadly drafted or not properly drafted and you believe that the clause may not be enforced by the court then is it worth it for you to raise that issue and give the employer the opportunity to fix the clause so that it could be enforceable if challenged in court.  These are some of the things to consider and

I hope this gives you a sense of how the non-solicitation clauses work. We will talk about confidentiality and other clauses in our future lectures.

Thank-you for watching.

Workplace Investigation: Appointing the Right Investigator

July 19th, 2020

Appointing the right investigator to properly conduct a workplace investigation is crucial. This lectures explains what makes a workplace investigation challenging and some of the essential qualities of a workplace investigator.

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

 

Show Notes:

N/A

Lecture Slides:

Welcome everyone. This is Amer Mushtaq from YouCounsel.

When you are instituting a workplace investigation you have to select the right investigator for that particular issue.  It is an important step.  Choosing the right investigator is crucial to the conduct of a proper investigation.  Why is it important to choose the right investigator and what are some of the qualities of the right investigator?  We will talk about that in today’s lecture.  

We begin with our disclaimer that this course is not legal advice so if you have any specific questions regarding your issues you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

Hiring the right investigator is important. But why is that important? Let me give you some specific answers to that. 1. The investigator has a very high burden and I’ll explain what I mean by high burden; and 2. Secondly, there are significantly negative consequences of a badly conducted investigation.  I will explain that point more in the next slide.

I’m using the word investigator’s burden purposely.  I believe that yes, it is an investigator responsibility to conduct a proper investigation but it is also a burden.  The responsibility is so high that I believe the word “burden” is appropriate.  It needs to be discharged with respect to the investigation; to each employee that is being interviewed; with respect to witnesses; with respect to the accused; and with respect to the accuser.  Sometimes this burden is even higher than a judge’s burden in a court system.

And what do I mean by that? To understand that you need to understand that the investigation process is an inquisitorial process, not an adversarial process. There’s a difference between an inquisitorial process and adversarial process.  Let me explain to you what that difference is. 

Adversarial process: our courts and our judicial system works on an adversarial process system. What is meant by that, is that the judge makes a decision on a case based on competing evidence that is presented to that judge.  In an adversarial system there are 2 parties, one is the plaintiff, one is the defendant. The plaintiff hires his or her own lawyers, so does the defendant. They bring their own evidence to the trial and they present their own case. And what the judge will do is – the judge will look at the evidence of both parties and then decide which party is more compelling—which case is more compelling and may the best case win.  In a court system / in a judicial system the judge has no responsibility to conduct his or her own investigation. 

There may be questions in a judge’s mind that may require further investigation but that’s not what the role of the judge is. It’s an adversarial system.  In an adversarial judicial system, we as a society believe that when both parties (opposing parties) are allowed to present their case to the best of their abilities that there is a level playing field for both parties.  They can both present their best foot forward.  The truth will invariably come out because of the presentation of cases.  The best case will—when the truth will come out. That’s our concept. 

In an adversarial system the judge is not conducting any investigations of the judge’s own will.  It is based upon whatever is presented.  In a way a judge’s job is relatively simpler because whatever evidence is presented before the judge, the judge has to choose between the competing evidence before him.  Whichever one makes sense, whichever one is more compelling the judge rules in that party’s favor.

In an inquisitorial process the investigator has the burden to search for the truth.  When you hire an investigator there are no competing versions.  The competing versions are to be determined by the investigator himself.  The investigator will talk to the accused; will talk to the accuser; will talk to the witnesses; will look at the documentary evidence and then determine what the truth is.  The role of the investigator is much higher.  The burden is much higher in an investigative process because it is the investigator’s job to search for the truth.   In an adversarial process the judge will invariably rule in one party’s favor—either the plaintiff will win or the defendant will win.  One of the 2 parties has to win based on the competing evidence they are provided. 

In an inquisitorial process it is possible in some cases where the investigator may conclude (having reviewed all of the evidence, having spoken with all of the witnesses) that there is no factual determination of who did what in terms of being wrong.  Who committed an offense; who committed harassment; who committed a mistake that warrants some sort of punishment—the evidence may lead to lack of conclusion.  It is possible in an investigative process whereas in an adversarial process (in a civil court system) there’s always one party that is going to win and one party that is going to lose.  In the inquisitorial process the entire burden comes on the investigation. Yes, the investigator is going to ask the witnesses to provide their evidence and what not but at the end of the day it is the investigator’s job to look for more evidence. If the investigator needs to search for more then, the investigator needs to take the investigation in the direction that it ought to go. All of these decisions lie with the investigator to conduct a proper and thorough investigation.

What are some of the consequences of a badly conducted investigation? The major consequences are legal consequences.  A badly conducted investigation will not hold when challenged in a court.  If the matter goes to court and in that court process the investigation that was conducted is also examined by the court system and if it is not properly conducted, it is not legally defensible.  Then it may end up harming the company or the employer more than having not conducted an investigation.  A badly conducted investigation has legal consequences.

It has, obviously, economic consequences. It costs money and resources to conduct a workplace investigation.  If you conduct a bad investigation or you hire an incorrect investigator then the investigation you have conducted may not be proper—you have lost your time and resources for that.  Obviously, there are workplace consequences if the investigation is conducted badly.  That means that the truth has not been properly determined; that means that proper legal actions may not be taken; that means the wrong party may have been disciplined—all those consequences flow from a bad investigation.  Therefore, rather than repairing the workplace, rather than repairing the relations, the investigation has now harmed the workplace process.

With that in mind with the importance of hiring a good investigator (a proper investigator), what are some of the essential qualities of an investigator? These are essential qualities and I believe that the investigator has to have these qualities. (1) The prime (the most important) one is neutrality. An investigator must be neutral and I’ll explain this in more detail. (2) Secondly. Competence—the investigator must be competent in conducting an investigation. (3) The investigator should be able to do his or her job efficiently.  

(1)  Let’s talk about neutrality. 1st thing about neutrality—which obviously makes sense, is that there should not be any conflict of interest for the investigator. This is a scenario that often may be present when the company is hiring an internal investigator. When a subordinate employee has made an accusation of some sort against the manager it is obvious that the manager should not be the one conducting that investigation or should play any significant role in that investigation because the manager has a conflict of interest.  Sometimes the manager’s manager (the manager’s own boss) may have an indirect conflict of interest because the investigator’s boss may have some interest in protecting his or her own manager as opposed to the subordinate worker who has filed a complaint.

A conflict of interest is an important factor and the investigator (1) should not have any conflict of interest either actual or perceived. There should not be any conflict of interest on part of the investigator to make sure that the investigator is neutral and unbiased. (2) Secondly, there shouldn’t be any circumstances that should lead/cause undue influence on the investigators ability to conduct investigation.  One of the things that may occur in places where investigator and the parties who will be investigated or the accused or the accuser know each other / work in the same company even though they may not know each other directly, there may be some undue influence.  We know that workplaces have their own dynamics. They have their own cliques; they have their own relationships which do play a role in terms of various decision-making that occurs within the workplace environment.

That may all be fine with respect to day-to-day issues.  When it comes to an investigation there should not be any undue influence on the investigator. Undue influence could be in subtle ways.  For example, a human resources person who may be conducting an investigation may have friendship with the manager who has some interest in the outcome of the investigation. That relationship (social relationship) may cause some undue influence with respect to the conduct of the investigation.  It is important to ensure that there is no undue influence on the investigator to conduct an investigation in an impartial and unbiased manner. (3) Thirdly there should not be any prejudice or preconceived judgments about what may have happened with respect to the issues that are being investigated. I think that part is again very important when internal investigations are conducted by employees—either by employees from human resources or other employees within the organization.

I will explain this to you by way of an example. Many years ago I used to be a naval officer. The way it works in the Navy is that if a sailor is charged with an infraction – for that infraction the judge is usually the commanding officer who listens to the charge.  The regulating officer presents the charge; acts as a prosecutor; the sailor’s officer (departmental officer) becomes the defender.  Then the charge is presented and the commanding officer makes a decision.  On a small ship of 50 to 60 people, everyone knows everybody else.  When a sailor is charged, it is obvious that, that sailor’s background, his social relations, his interactions, his general impression in the workplace is known to everyone. I remember in one case I was defending one of my sailor’s who was not very well liked within the ship’s company.  He was socially awkward. People didn’t like him he was not very presentable. His social demeanor was not very well liked. Nothing to do with his legal defences but he was just not liked—including myself.  Even though he was in my department I did not like him. 

I had to defend that sailor when the charge was presented and the sailor had to step forward.  What I did at that time: I presented a different sailor to come and step forward even though my sailor was being called.  When my sailor’s name was called the sailor who actually stepped forward was a different sailor.  This was a sailor with the same rank but he was very well liked. He was very well respected within the ship’s company.  He stepped forward and my commanding officer was obviously puzzled. He looked at me and he asked, why is this sailor here? I believe the charges are against a different sailor.  I then told my commanding officer: I have brought the sailor just to make a point. When you are considering the charge against my sailor, I want you to keep in mind this sailor who is a good sailor when you are awarding the punishment because when you think of my sailor he is so disliked in the ship’s company that I worry that when awarding punishment it may be disproportionate to the charge that he is being charged for (with the infraction that he has committed) and so I just wanted you to think about this nice sailor rather than my sailor when you’re awarding the punishment. 

The commanding officer smiled and he said: “I take your point”. He said, that look if you had not made this point, I suspect I may have been a bit harsher on your sailor because I agree that no one likes him. Prejudices come in very subtle forms—especially with people that we work with or the people we know—we know of their impressions through work—whether they’re favorable or unfavorable.  These kind of issues about neutrality and conducting and unbiased investigation become crucial when the investigator is an internal investigator who has knowledge of the parties or may have knowledge of the parties through other people.

(2) Competence. Obviously the investigator needs to be competent. One of the things that the investigator has to have is a good understanding of law. If the investigator does not understand the law there will be difficulty in conducting a true fact finding mission. I’ll explain that further down.  The investigator needs to understand policies and procedures. If there are workplace policies that are at play with respect to that investigation, an investigator needs to have a very good understanding of those policies before he or she conducts that investigation. Now talking about understanding of law—there is an important point that I want to make and that is that oftentimes fact finding is driven by underlying legal issues.  Even when you are trying to find some facts the way you ask questions; the direction of your inquiry; how deep do you go with respect to asking questions is often informed by the legal issues that you’re grappling with.

Let me explain that by giving you an example. Let’s say that you’re investigating a complaint from an employee who says that he was discriminated because of his disability—the employer failed to accommodate his disability issue.  The disability issue he says is that he had a back pain problem for the last several weeks and the employer still asked him to perform certain tasks that he should not have done because of his backache. When you are conducting an investigation to determine whether there was a breach of the Human Rights Code, whether there was discrimination or not, you obviously, on the basis of common sense will 1st of all find out whether that employee indeed had back pain or not. You look towards medical evidence or other evidence to confirm whether that individual had back pain. 

Then the 2nd inquiry on the basis of common sense you may ask is whether the employee asked for any accommodation. Whether the employee went to his manager or went to the human resources and asked them that look I have a back pain can you not assign me those duties.  Let’s say the answer is no.  The employee says no, I never went to my manager or I never went to human resources to ask for any accommodation.  Based on common sense, your inquiry may stop right there because common sense will say: well he never asked for it how is he going to get the accommodation. Make sense? You want accommodation on the basis of disability you have to go ask for it.  It will not be divine on the employer to provide you that accommodation unless you ask for it. 

If you understand the law, your inquiry will not stop there because you would know that at the next level of inquiry you need to determine whether regardless of the employee asking for accommodation or not whether the employer had any knowledge that the employee had disability issues or back issues. If the employer had some knowledge then the law imposes a procedural obligation on the employer to inquire whether the employee may need some accommodation and to follow it. That understanding or that factual inquiry is now driven by your understanding of the underlying law of discrimination. Absent that understanding your inquiry may not go deeper; your inquiry may not go in the direction that an appropriate inquiry should go.

Just to give you a clear understanding, there is actually a case in our jurisprudence on those facts.  An employee who had worked for a car dealership or something and he had this back pain issues and he never asked his manager to accommodate him because of his back pain.  He was clearly seen leaning by the walls most of the day because of his back pain issues.  He was obviously seen in pain and his manager actually acknowledged that he understood the employee to be suffering from some sort of back pain but because the employee never asked for an accommodation he never took any initiative in providing any accommodation. 

The important point is that fact finding oftentimes is driven by underlying issues.  If the investigator is unclear about the law; does not have the full understanding of the law, even though the investigator’s mandate may be limited to finding only the facts—the facts that the investigator may uncover may not be complete.  It is an important thing and I kind of find this to be an issue of competence that the investigator needs to have the understanding of law and the underlying policies to properly conduct an investigation.

(3) With respect to efficiency: An investigator needs to conduct timely investigation. When you hire an investigator you need to make sure that the investigator has sufficient time to allocate towards an investigation because it is important both legally as well as otherwise that the investigation is conducted in a timely manner. Part of efficiency is the investigator’s ability to dig deeper when warranted.  When investigator is asking questions then based on the answers provided, based on the evidence that is presented, sometimes the evidence leads to certain other issues that may need to be investigated further.  The investigator needs to figure out based on its mandate—based on the issues at hand, does it make sense to dig deeper or not.  This is sort of a judgment call and again the investigator needs to be able to do that efficiently.  Similarly, the investigator needs to have the ability to avoid irrelevant issues that may arise as part of the investigation.

I can give you an example. In one of the investigations that I had conducted some time ago where when I was investigating this person who had filed a harassment complaint.  As part of the investigation she raised this issue in my examination of her that she had faced similar harassment from the same employee some 10 years ago.  There is an obvious question now on part of the investigator whether the issue that she’s raising of 10 years ago needs to be probed. If it needs to be probed then to what extent, how deep do you need to go in investigating that issue. These are issues, these are judgment calls that the investigator makes at every step of their investigation.  In which direction the interview needs to go; in which direction the fact finding mission needs to go; what kind of pitfalls to avoid; what kind of issues to avoid; what kind of issues to focus on; what remains relevant based on the mandate that is given to the investigator. Efficiency in conducting an investigation is also one of the essential qualities of an investigator.

To sum it up, selection of the right investigator is one of the most crucial steps in my view. A bad investigator can cause more harm than good.  It is very important to select the right investigator for your investigation. Hopefully, this gives you a good sense of how to hire a good investigator for your investigation and we’ll talk more about these issues in our following lectures.

Thank-you for watching.

What is a Workplace Investigation?

July 19th, 2020

What is the purpose of a workplace investigation? How is a workplace investigation instituted? What is the role of Ontario Occupational Health and Safety Act respecting a workplace investigation? What are the goals of a workplace investigation and what are some of the common steps in a workplace investigation?

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

 

Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

Today we will talk briefly about workplace investigations. What is a workplace investigation; what is its purpose; what are some of the goals; how is a workplace investigation instituted; and what are some of the steps taken in a workplace investigation; so you can get a basic understanding of workplace investigation whether you are an employer or an employee who is involved in an investigation.

We begin with our usual disclaimer that this lecture is not legal advice. If you have any specific questions, you should contact a lawyer or a paralegal or the Law Society of Ontario for any referrals.

Workplace investigation is to investigate a workplace dispute.  That’s one of the common reasons.  There could be an allegation of improper conduct.  For example, harassment complaint by an employee against a coworker or a manager or supervisor or a discrimination complaint or a complaint of any other conduct that is considered to be improper—you may, as an employer, need to investigate that.  There may be a workplace accident or an injury that requires an investigation and that could be a reason.  Or something or another occurrence/something else that may have happened in the workplace that warrants that the employer should investigate that particular occurrence. 

What is the purpose of an investigation? The fundamental purpose of workplace investigation is fact finding—to figure out exactly what happened—that is the most basic and the most essential purpose of a workplace investigation.  Who said what to whom; what was the incident; how did it happen; who were the parties involved; essentially all the important elements of that specific instance or instances and to figure out all the facts that are relevant to that particular issue.  Fact finding is one of the most essential and sometimes the only purpose of an investigation. The investigation could be much broader than just a fact finding mission but essentially it has to be a fact finding mission.  

Other purposes could be to identify breaches of policies and procedures.  If the employer has any policies relating to that instance, then the employer may want to know whether a specific policy or policies or procedures were breached.  For example, if it’s a workplace incident involving the use of specific machinery—were there any policies relating to the operation of that machinery and whether the policies were followed or, if not, whether the procedures were breached.  If so, who did that?  Some of the purposes of the workplace investigation could be to figure that out.  Also one of the purposes of investigation could be to figure out any breaches of law.  This could be different from the policies and procedures because policies and procedures may be limited to that specific employer and may not necessarily be a legal obligation imposed by law. 

Another purpose of workplace investigation could be to figure out breaches of law—whether there was discrimination contrary to the Human Rights Code; was there any harassment contrary to the Occupational Health and Safety Act—whether there were any other breaches of law; whether the alleged act was a criminal act and warrants any criminal investigation.  All of these things may be part of the investigation process.  Another purpose of investigation could be to obtain recommendations from the investigator so that any future issues of similar nature could be avoided.  The employer may ask the investigator to provide a legal opinion on the matter/s; the employer can ask the investigator to provide any recommendations—whether any legal action is warranted against any of the parties who are involved in that issue. 

What is the obligation to investigate?  The investigation could be done in one of the two ways: 1. Investigation is done under Occupational Health and Safety Act in Ontario.  There are similar legislations in other provinces.  I’m not sure whether other provinces mandate a workplace investigation but in Ontario under Occupational Health and Safety Act, the Act requires (it imposes a mandatory obligation on) the employer to conduct a workplace investigation when there are issues related to harassment.  Here’s the Occupational Health and Safety Act.

Section 32.07(1) “To protect a worker from workplace harassment an employer shall ensure that,

 an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances;

It is important to recognize that the language that is used is to conduct an investigation. Number one, it’s a mandatory obligation to conduct investigations. And number two, investigation has to be conducted into incidents and complaints.  Sometimes there could be a potential workplace harassment but there is no complaint actually filed with the employer.  The employer becomes aware of an incident which may be considered a workplace harassment—the obligation to investigate is still on the employer to conduct a workplace investigation.  Obviously, when there is a complaint, then the employer has an obligation to conduct a workplace investigation. The other section that is worth reading here with respect to the investigation is that,

  • The worker who has allegedly experienced workplace harassment and the alleged harassers, (both parties) if he or she is a worker of the employer are informed in writing of the results of the investigation and if any corrective action that has been taken or that will be taken as a result of the investigation.

The person who made the complaint or the person who has experienced workplace harassment is entitled to know what is the conclusion of the investigation and secondly the person who has been accused is also entitled to know what is the outcome of the investigation and this needs to be done in writing.  The Occupational Health and Safety Act mandates the employer to conduct an investigation with respect to workplace harassment issues.

Otherwise the employer has its own discretion to conduct an investigation.  If it’s not a harassment scenario, in any other circumstance, the employer may decide that a workplace investigation is appropriate in the circumstances and may choose to conduct an investigation. 

An example of such an investigation could be an investigation into any discrimination or potential discrimination issue/s.  The Ontario Human Rights Code does not mandate an investigation.  The employer may choose to conduct an investigation to figure out whether there was any discrimination based on the facts of the case at hand and to take appropriate action. 

Aside from the Occupational Health and Safety Act there is no obligation but based on the specific circumstances of the issue the employer may choose to investigate.  Just so you know workplace investigations have now become a common thing—primarily because employers want to make sure that they understand what has happened and to protect other employees and the employer itself from any legal actions that may flow from that specific instance.

What are some of the goals of workplace investigation? It is tied to the purpose of the investigation. One of the goals of the investigation is to figure out what legal action, if any, needs to be taken based upon the issues that have come to light in that specific investigation, and, if there are any remedies that need to be obtained with respect to that investigation.

Another goal is to make sure that the workplace is repaired if there is a breach in relationship between coworkers and employees, then that is repaired.  You create a work environment which is safer and cordial. And make sure that if there are issues with any policies—either with respect to the policy itself or with respect to any training or any other facts relating to workplace policies—then that that is looked after. Obviously, the employer wants to make sure that the workplace is more productive and safe for all of its workers.  Finally, the employer also wants to make sure that similar issues do not arise in the future.

Now how is a workplace investigation instituted? First of all as I said, the employer may become aware of the issues; knowledge of issue; dispute or the occurrence. Then the employer because of that knowledge starts the process of deciding whether to conduct an investigation or not.  Or the employer may have seen specific complaints from an employee with respect to an issue and that may trigger the inquiry of whether a workplace investigation needs to be conducted. 

Once that knowledge of the issue is made aware, then the employer conducts a preliminary review—usually done by human resources department, if the employer is big enough to have a dedicated human resources department or someone who is in charge of human resource issues will conduct a preliminary review and decide whether an investigation is warranted in the 1st place or not. If it’s an Occupational Health and Safety Act issue (obviously for harassment issues) the investigation is mandatory.  For other matters, the preliminary review will determine whether to conduct an investigation or not. 

Once the decision is made to conduct an investigation the next step is who will conduct the investigation. Whether it’s going to be an internal person / an internal employee of the organization who will conduct the investigation or whether it’s going to be someone outside of the organization / an external person who will conduct the investigation. 

If it’s an internal person, then the employer has to decide who is the appropriate employee to conduct investigation; whether this person could be a human resource person; whether this could be a manager ; a supervisor or another competent employee who has no conflict of interest.  There are other factors that an employer needs to consider to make sure that an appropriate employee is assigned for the task to investigate.  We will provide separate lectures on selecting an appropriate investigator and how do you figure out who is the right person to investigate based upon the specific circumstances of an investigation. 

If the employer decides that it is going to be done by an external investigation, one of the factors that the employer may consider is whether the investigation needs to do be conducted by a lawyer or a non-lawyer—whether it could be someone who can simply conduct a fact finding mission without having a clear or deeper understanding of the legal issues involved then a non-lawyer may be suitable. Again with respect to the selection of an appropriate investigator we will provide a separate lecture and will cover this topic in more detail.

Now how is an investigation conducted?  Some of the common steps in a workplace investigation are as follows:

First of all an investigator is assigned whether internal or external investigator; 2nd then the investigator is provided with the mandate. What is the scope of the investigation? Is it only fact finding or investigator has to dig deeper into related matters?  For example, breaches of policies and breaches of law—whether the investigator is required to provide an opinion on policies and procedures, on law or any other recommendations that the employer may be seeking from the investigator.  3rd The employer may also prescribe a timeline for the conduct of the investigation.  Usually the expectation is that the investigations are commenced and completed in a reasonable time period.  Once that is done, then the role of investigator begins.  Investigator starts gathering facts and evidence. In that process the investigator gathers all documentary evidence that may be relevant to the understanding of the issues that have occurred.  The investigator may get viva voce evidence and the investigator will most likely conduct interviews from a number of witnesses to figure out what has truly transpired in that specific instance.  Once all of that is complete, the investigator will review all of the evidence and all of the facts and then provide a report to the employer regarding the outcome of the investigation.

What is it that you want to keep in mind with respect to workplace investigation? That a properly conducted workplace investigation is usually very helpful to the employer in understanding what has happened, what caused the issues that became the reason for the investigation, how to maintain a safe and productive workplace environment and to make sure that future instances of similar nature (similar disruptions) do not occur at the workplace.

In our future lectures we will talk more about workplace investigation and some of the specific topics, for example, choosing an appropriate investigator; how to conduct a fair and unbiased investigation.  We will cover those topics in our future lectures.  Thank-you for watching this and hopefully this gives you a basic understanding of what is a workplace investigation. Thank you.