Employee Rights in Ontario on Sale of Business

October 12th, 2020

This lecture broadly explains employee rights when businesses undergo sale/acquisition. This lecture is also helpful for businesses in understanding their obligations in the process of purchase/sale, so they could make informed decisions.

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.

Today, we will talk about employee rights, when an employer is going through a transition—being acquired by another company, selling their business—what happens to the employees’ rights? This lecture is also helpful for businesses that are selling their business or acquiring new business—to understand what could be the employee rights that may be affected.

Please note that this lecture 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.

The sale of business can happen in 2 ways, one is called share purchase and the second is called asset purchase. The term sale is defined quite broadly in the Employment Standards Act. It could be the sale of the business, it could be the leasing of the business, in some circumstances even sub-contracting may be considered a sale for the purposes of Employment Standards Act. It is generally the disposition of business, from one owner to another in some way.  It doesn’t have to be from company to company. It could be from company to an individual owner.  There are multiple variations. But the sale or purchase of the business can happen in 2 ways. Share purchase and asset purchase. We’ll talk about both and then we’ll talk about a third category called common employer. We’ll explain what kind of employers are considered common employer and what are the implications for employees in that.

Let’s talk about Share Purchase. Share purchase, obviously means that a company, one person or entity acquires the shares of another company. It could be all of the shares, could be some of the shares, but essentially it’s a share in that business. What happens in that case—there is no change for the employees because the company, the corporation remains the same. If there are any changes that need to be brought, if the new owner wants to make the changes to the terms of employees employment, then there has to be something called Fresh consideration. A fresh consideration means there has to be some give and take between the employer and the employee for the change of the employment structure to take place. For example, if the new owner wants to reduce the salary of an employee, then they have to give something in return. For example, more vacation or a bonus or something like that. But whatever the change may be, it does require a fresh consideration otherwise the change will not be enforced.

Now let’s talk about Asset Purchase. In asset purchase, essentially, one company is acquiring certain assets, maybe all assets—but certain assets of another company. For example,

 if the seller is a manufacturing facility and they have multiple lines.  The purchaser is buying only one product, one line, then that is the asset that the purchaser is acquiring. When the purchaser buys the assets, then the purchaser may offer employment to the employees of the seller or may not.  If it offers employment, it could be on the same terms as the employee was employed at the seller or could be on different terms. If the offer is made, then an employee has two choices, either to accept the offer or to refuse the offer. If the employee rejects the offer, indicates that it does not want to work for that employer, then, that will trigger determination rights for that employee and the seller company will be responsible for paying all of the termination rights for that employee.

On the other hand, if the employee accepts the offer of employment by the purchaser (by the new employer), then this will be a new contract that will take effect. Whatever the terms in those contracts are, those will be the terms for the future relationship—except for this—there are certain rights from the seller that continue to be enforced for that particular employee.  What are those rights? These are important ones: employment with the seller will be deemed employment with the purchaser, for calculating employees length of service or period of employment. For example, if the employee had worked for the seller for 10 years, then based on Employment Standards Act, this particular section, those 10 years will be considered 10 years with the purchaser, as if the employee was working for the purchaser for the last 10 years.  

Why is this important? Because this helps with so many Employment Standards Act rights that are dependent upon the length of your service. For example, vacation. If you have a longer service you may be entitled to more vacation. You have to get your vacation after you have completed one year—that is how it starts. Then pregnancy leave rights are dependent upon the length of your service, parental leave rights, critically ill child care leave, terminations rights, as we know, the longer your services the more termination pay you get.  Similarly, severance pay rights are dependent on the length of service. What the legislature has done is ensuring that employees are not affected in some ways, at least, not all of the ways, but in some ways because of the sale of a business certain rights remain intact. Once the employee accepts the offer of employment with the purchaser, these rights are automatically followed through whether they are indicated in the contract or not they are given and they will remain in force.

There is one exception to this and that is if there is more than 13 weeks of gap between employment between the seller and the purchaser. If your last day of work with the seller was ‘X’ and then you get hired by the purchaser after 13 weeks (after more than 13 weeks), then these rights are not available.  Then your employment will be considered fresh employment/new employment and you will not have any rights coming from the seller.

There is a third category of this transition which is called common employer. Essentially, in this situation there are two ways to consider this. Common employer happens when an employer is structuring his businesses to get some tax advantages.  For example, it’s one employer, one company but it has created 3 or 4 different companies to have some tax advantages of how they structure their business. But, essentially, all of them are doing related business. In Employment Standards Act the section that deals with this, that considers related activities or business between all of those employers. If they are related, if their businesses are related, activities are related then they will be treated as one employer with respect to the employment law obligation.

Similarly, in common law it is called the doctrine of common employer and in that case the test that the court applies is called degree of legal commonality between employers. What the court considers is whether the employers have same offices, whether they have similar management structure, whether they have same website, whether they have same suppliers, same H.R. staff, same accounting staff, things like that—to figure out whether these businesses have commonality between them.  If they do, then the rights and obligations of the employees are given to all of the employers together. It’s considered one employer. All of these employers, if there are more than one, they will be considered jointly and severally liable to the employee for the employment law obligations.

This helps in so many ways because a lot of times you will see that one employer changes its corporate entities, now it’s a different name, now the company is changing to a different company, but the essence of the business, essence of their operations is the same.  The employees are essentially doing the same work in the same circumstances and what not.  In those cases, what is ensured is that the employees rights are not affected.

Hopefully this gives you a broader understanding of your rights if you are an employee and your company or businesses are going through some transitions or have gone through some transition so you can understand what your rights are. These are also important for businesses which are selling their business to another company or purchasing someone’s businesses, to understand that their employment law obligations that they may have not thought about and that are enforced regardless of what their contractual agreement may be between the purchaser and the seller.

This is a very broad explanation of the sale of business.  There are many complications involved in this process but hopefully this gives you an overview of the rights of an employee in the scenario.

Thank-you for watching.

Which Employees Are Not Entitled to Overtime Pay in Ontario

October 12th, 2020

Many employees (and employers) are not aware of employees’ entitlement to overtime pay in Ontario. This lecture explains these basic rights and focuses on employees who are exempt from receiving overtime pay.

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.

Many many employees in Ontario have no idea, whether they are entitled to overtime pay based upon their employment or not. We have posted, I believe 2 lectures on this topic which explain the fundamental principles of overtime pay. In this lecture we wanted to dig a bit more deeper and then explain to you, which are the employees who are exempt from getting overtime pay, or who have different rules that may apply to their situation with respect to overtime pay.

Please note that this lecture 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 will explain to you the basic entitlement for overtime pay. We will also explain some of the misconceptions people have with respect to overtime pay. Both of these have been covered in our previous lectures in more detail. So by all means check those lectures out, but we will cover some basic topics here. Then we will explain, what are the categories where the overtime hours are applied differently to some employees and then we’ll get into the meat of today’s discussion which is, which of the employees are actually exempt from earning overtime pay.

You are entitled to overtime pay if you meet 2 qualifications: number one you work more than 44 hours in a week in Ontario and secondly you are not exempt from earning overtime pay which is the topic of today’s discussion.  If you work 44 hours or more then you get paid one and a half times for each overtime hour worked. For example, if your hourly income comes out to be $20.00 an hour and you have worked one hour of overtime pay, then you get $30.00 for that time.  Or you may get time in lieu based upon one and a half times for each hour worked. For example, if you work one hour of overtime then you will get paid time off or hour and a half. This is your entitlement for the overtime. Now there’s a category of employees who will get different overtime—well, same overtime based on different hours.  We’ll talk about that as well.

Let’s talk about some of the misconceptions. Generally speaking there are 3 misconceptions people have about overtime pay. The most common one that I’ve heard people saying is that: “oh, I am a salaried employee, I make $60,000.00 a year / I make $40,000.00 a year and therefore I’m not entitled to overtime pay”.  That is not correct.  It matters not whether you are a salaried employee or whether you are earn hourly wages—as  long as you qualify the conditions that I’ve explained, you are entitled to overtime pay.

The 2nd misconception people have is about the level of income. I’ve dealt with employees who have had significantly higher income and significantly higher bonuses and somehow they are made to believe, that because of their higher income, they are not entitled to overtime pay. Again, it matters not what is the level of your income, what matters is whether you qualify based on the 2 categories of principles that apply and if you do then you are entitled to overtime pay.   

Finally, some of the employment contracts I have seen they tend to take away the right of overtime pay. For example, some contracts that I have seen, which will indicate that look you will get ‘X’ amount of bonus for your work and because you’re going to get that significant bonus you will not be entitled to overtime pay.  That is not correct. Any employment contract, any contract cannot take away your right for overtime pay, as long as you’re entitled to it under the Employment Standards Act in Ontario. Now the contract can give you more rights, but it cannot take away your rights. I have seen employment contracts where employees who are generally not entitled to overtime pay, based on Employment Standards Act, they are given overtime pay withthat specific employer. I have seen many information technology professionals who are able to earn overtime pay even though Employment Standards Act does not allow them to have overtime pay. An employment contract can give you more rights, but it cannot take away your rights for overtime.

Let’s talk about the Rules for different overtime hours for certain employees. If you are involved in road building relating to streets, highways or parking lots, then you’re maybe entitled to overtime pay after you have worked 55 hours not 44 hours. Now if you are an employee involved in road building but you’re not working on streets, highways but working on bridges, tunnels or retaining walls, for some reason your overtime hours kick in after 50 hours. If you’re working in hotels, motels, tourist resorts, restaurants and taverns and you worked 24 weeks or less in a year and you have a place given to you to stay, then your overtime hours will kick in after 50 hours of work. If you are a driver or their helper, then any work within a municipality or no more than 5 kilometers beyond municipalities (let me say I don’t understand why), then your overtime hours kick in after 50 hours. Then some other drivers the overtime hours kick in after 60 hours. If you are in one of these categories, there are more legislations, there are more Rules that you need to see. I’ve not explained this exhaustively, but you should understand that these are categories of employees, who will have additional or different rules that may apply to them.

Let’s talk about employees who are exempt from earning overtime. The most important category is number one, if you are a managerial or supervisory employee—then you are not entitled to overtime pay. This is the most common one and then there are further qualifications to that:  how do you define a manager or supervisor? There could be a discussion about that. Then what if you’re doing a combination of work one part of your work is supervisory and part of it is not. There are further rules that may apply to them, but generally speaking managerial or supervisory employees are not entitled to overtime pay.

Now this is the list of all of the employees. If you are an architect, lawyer, professional engineer, public accountant, so on and so forth; these are all listed – if you are one of these employees, then you’re not entitled to overtime pay.  Then also note that if you are a student of all of these occupations, then you’re not entitled to overtime pay.  If you are a firefighter, if you’re an employee involved in commercial fishing—there is no overtime.  If you are a guide for hunting, fishing or wilderness – there is no overtime. Landscape gardeners have no overtime. If you install or maintain swimming pools no overtime; sales person in real estate, or broker no overtime; if you’re a sales person on commission, there are additional rules, but generally speaking you’re not entitled to overtime hours; if you are a farm employee, generally speaking, no overtime hours; if you grow mushrooms or grow flowers, for retail or wholesale or you grow and transport or lay sod  or you grow trees and shrubs for the whole retail and wholesale you’re not entitled to overtime pay. If you breed horses on a farm, no overtime hours and if for any reason you raise fur bearing mammals you’re absolutely not entitled to overtime pay. How could you? If you’re employed as a student to instruct, supervise children-no overtime hours, no overtime pay. A person employed as a student at a camp for children no overtime pay, if you are employed as a student in the recreation program and there are specific requirements for that, no overtime pay, if you are employed as a superintendent or janitor or a caretaker of a residential building and you reside in that building, no overtime for you. Person employed as a cab driver, absolutely not. Ambulance driver, no overtime and if you are an information technology professional there’s no overtime for you.

One comment that I can’t help make is about the distinctions that have been drawn. I believe that these are arbitrary distinctions, with respect to which employees should get overtime pay and which should not. It makes no sense to me why a person who installs a swimming pool should not get overtime pay or a person who is a landscape gardener should not get overtime pay and somebody else would. These distinctions do not make sense to me, but they exist. What may make sense to me is that if the distinction is drawn on the basis of your income. For example, if your income is $100,000.00 or more, then you may not be entitled to overtime pay because you earn sufficient income and if you work long hours then it should not make a difference. That is one distinction that I can understand. Or if you indicate that if you’re a supervisory or managerial employee, you get sufficiently high income and if you work long hours then you should not get overtime pay.

These are the kind of distinctions that make sense to me. They’re simple. But all of these categories that are created, and not only that, a lot of employees are not entitled to overtime pay but then some employees are treated differently with respect to the hours, like why is a person, who is working on tunnels, entitled to overtime after 50 hours but the one who is working on streets entitled to overtime after 55 hours? These don’t make sense to me.  In any event what you should know is that these categories exist as of today and if one of these categories apply to you then you may not be entitled to overtime pay or your hours may be treated differently.

Thank-you for watching.

The Basic Principles of Evidence in Civil Cases

October 12th, 2020

A basic understanding of the law of evidence is essential for identifying the appropriate evidence for a litigant’s case. This lecture explains these basic principles through an example.

Canada Evidence Act: https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-5/latest/rsc-1985-c-c-5.html

Ontario Evidence Act: https://www.canlii.org/en/on/laws/stat/rso-1990-c-e23/latest/rso-1990-c-e23.html

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.

In today’s lecture I will explain the basic principles of evidence that will help you in identifying the appropriate evidence that you would need for your case in a civil court in Ontario.

Please note, that this lecture 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.

In today’s lecture, I will explain what are the sources of evidence law that the judges and the courts consider in making decisions about evidentiary matters. I will explain to you the basic principles of evidence law that is applied by judges. I’ll try to explain this further, by way of an example.  Then, finally, I will talk about the discretionary powers of a court or a judge with respect to the evidentiary matters. There are 2 sources of law with respect to evidence. Number one is statutes and number 2 is common law, which are the decisions of judges with respect to evidentiary matters.  It contains many, many principles of evidence.  When judges are deciding on evidentiary issues, they make those decisions on the basis of a combination of common law principles and statutes.

Regarding statutes, we have the federal statute, Canada Evidence Act which deals with all matters that are in federal jurisdiction. With respect to provinces, each province has its own provincial legislation regarding evidence and in Ontario it is Evidence Act.  Other provinces and territories will have similar legislation.  The third item with respect to legislation is the Rules of Civil Procedure. They also contain various Rules with respect to how different pieces of evidence are entertained by judges and in courts.

Let’s go to basic principles.  There are 3 basic principles with respect to evidence and the courts will consider those principles in deciding whether the evidence is relevant and its need to be included in that court action or in that legal process.

The 1st principle is relevancy. The evidence needs to be relevant. What does that mean? The specific piece of evidence that you’re presenting, it should increase or decrease the probability of the truth of a fact. The evidence is whatever you have stated, whatever facts you have alleged in your pleadings, that specific evidence that you are providing, that you’re submitting, should increase or decrease the probability that, that fact is in fact true. The key thing you want to remember about relevance is that the threshold for a piece of evidence to be relevant is very low. As long as that particular piece of evidence can somehow add value with respect to the truth of that fact—either it is true or untrue—then that piece of evidence would be considered relevant.  I will explain this by way of an example, so hopefully it will be clearer.

The 2nd principle is called materiality. Materiality is a piece of evidence that when you are trying to prove a specific fact, then that specific piece of evidence must have legal significance.  In this situation there is a specific legal test that is connected to that piece of evidence or evidence is connected to that specific legal test, which is why that particular piece of evidence becomes material. Broadly speaking, you will have a lot of pieces of evidence that will be relevant and from those relevant pieces, there will be evidence—pieces of evidence that will be material because they are corresponding to a specific legal issue that you have raised or you are defending and that’s what makes those pieces of evidence material.  Finally, the evidence that you’re submitting ought to be admissible (third principle) and what this means is that there are no exclusionary rules that apply by virtue of the application of those rules, those pieces of evidence are not admissible. In some cases evidence that you have presented may be relevant and material but because of the application of exclusionary rules and there are many exclusionary rules—(today we’re not discussing that, but in another lecture we’ll talk about it), relevant and material evidence is no longer admissible in that proceeding.

Examples of evidence that could be excluded is hearsay.  Hearsay evidence could be relevant and material—quite relevant, quite material—but because the evidence is hearsay it ought to be excluded.  The judge will exclude that.  Then there are exclusions to hearsay evidence (further exclusions) which will allow hearsay evidence to be admitted.  We’re not discussing that today. Character evidence is another example where character evidence may not be admitted. Similarly, there may be circumstances where opinion evidence is not admitted.  There are a number of categories of exclusionary rules that may apply. But what you want to remember is that for the judge to accept any piece of evidence, it has to be relevant and material and has to be admissible.

Let’s go to an example and see if we can explain the concept of relevance and materiality a bit better. I take an example of a case, where you had retained a contractor to renovate your kitchen.  In that process the contractor did not do the job properly.  You incurred damages as a result of inferior work or the contractor’s work that was not performed in accordance with your agreement or instructions.  You have incurred damages and you have sued the contractor in court for your damages. Within that context I am giving an example of one specific issue which was with respect to the countertops in the kitchen. You claim in your statement of claim that you had an agreement with the contractor that he will install granite countertops.  The countertops that he has installed are actually quartz—which was not something that you had agreed upon.  You had to have the quartz countertops removed and then granite countertops installed. Because of that you have incurred damages for which you are claiming before the court.

Normally if you have one contract, one piece of document that specifies what the agreement is, what is the scope of work, what is the cost, what material will be used, then that piece of evidence will be relevant and material.  You will produce that in order to show what was agreed upon and what the nature of the contract was.  Let’s assume, in this case, that there was no written contract—one piece of document.  The way you had agreed to all of the terms with your contractor was by e-mails and text messages—which is not unusual.  All of the evidence that you are going to present with respect to proving your case is going to be from the e-mails and text messages that you corresponded with your contractor.

In those e-mails let’s assume that you had e-mails that were discussing countertops. Imagine these are a bunch of e-mails where you state my budget is $5000.00 for countertops.  I would like to have granite countertops. The contractor, for example says, “well, $5000.00 is a low budget. I think you should consider some other material, maybe quartz”.  All of these e-mails will be relevant and material.  Where as if there are other e-mails that are discussing kitchen cabinets that may or may not be relevant depending upon the circumstances of your case.  But they’re not material.

What does this mean? Why are these ones material and these ones not material to this particular case? As I said for materiality you need to understand the legal significance of that specific piece of evidence that you are providing in this case.  Because it is a breach of contract case, there are 3 (I would say there are 3) basic things that you need to legally prove to the court. Number one that there was an agreement—there was a contract which specified that the material for the countertops will be granite. There’s a contractual agreement for the installation of granite countertops. That’s item number one. Second item that you’ll have to prove to the court is that the contractor breached that agreement. You will provide pieces of evidence proving to the court that what was installed was not granite, it was quartz. The third thing that you will have to prove to the court is that because of that breach you incurred damages.  In this case, you will be able to show, for example, invoices for removal of quartz and for the reinstallation or purchase of granite countertops and installation of that. Those are the three categories (3 things) that you have to prove in order for you legally to get your damages that you’re claiming.

The 1st item that you have to prove is that there was indeed a contractual agreement between you and the contractor for the installation of granite countertops.  The emails that are talking about countertops are relevant and therefore material. But the kitchen cabinet emails are not material because they are not going to prove the agreement of granite countertops. Now, if you have issues about kitchen cabinet as well with the contractor then, of course, these e-mails will be relevant and material—depending upon what kind of issues you have.  The point, that you want to carry from this discussion (from this example) is that one of the important things that you have to do in selecting evidence is to understand what is the legal task that you have to meet either to prove your case or to defend your case and then what are the pieces of evidence that correspond with that legal test and therefore those pieces of evidence will become material.

Let’s go to our discussion about the discretionary power of the court. What you want to remember from this discussion is that the courts have this broad discretionary power with respect to evidence.  In certain circumstances where the evidence may be relevant, may be material, may be admissible and there are no exclusionary rules that may apply, even then the court, the judge may decide that that particular piece of evidence ought not to be admitted with respect to this particular trial that you’re dealing with. How do judges decide that?  They apply this test where they assess the probative value of the piece of evidence that you have provided, versus the prejudicial effect of that evidence.

Let’s do this by way of an example. The example I have chosen is a bit extreme but it illustrates the point probably a bit better. Let’s take an example of a murder case.  Where the question is—does the Crown need to provide the photos of the deceased or the person who was murdered, as evidence to show that the person has indeed died?  The court will consider the probative value of those pieces of photos to confirm the death of that person.  There may be other ways to show that the person has died. There could be a death certificate.  In that situation the court will consider what is the benefit of having the deceased person’s photos, as part of evidence to prove that the person has died.  On the other hand the prejudicial effect may be that, seeing the photos of that person may have some sort of psychological impact on the minds of the jury.  That may have an impact on how that trial is decided or the process of trial is taken by the jury. In that case, the court may decide that there isn’t much probative value from those photos to be included as evidence even though they’re admissible. A death certificate from a hospital or a doctor is sufficient.  The court may say, we’re not going to admit the photos. But for example, if those photos are being presented to show, to prove the method of killing of the person, then the probative value may be much higher and the prejudicial effect maybe much lower.  In that case the court may allow the admissibility of those pieces of evidence.

In all of this what you want to understand, the 2 things you want to carry is you want to make sure that your evidence is material and it’s not otherwise inadmissible.  That means that you need to understand the legal significance of the evidence that you’re using.  Generally speaking what you want to remember from all of this is that judges generally like to have all of the evidence admitted as much as possible.  If it’s clearly hearsay evidence or there’s a prejudice to the other side then of course the judge will not allow that evidence but otherwise judges will like to have all pieces of evidence because then the judge can assign different weight to different pieces of evidence—if they believe that a particular piece of evidence seems to be weak, they may assign a lesser value to that piece of evidence / may rely lesser on that and there may be other evidence.  They like to have that option, so that within the context of the entire case, they can figure out which pieces of evidence are more appropriate for them to make their decision on.

Hopefully this lecture gives you a broader understanding of the fundamentals of evidence law.  As I indicated earlier, evidence law is quite complicated. It’s intricate. But if you have this basic understanding, at least you will be able to figure out what kind of evidence is relevant and material to your case and you will be able to make that selection better.

Thank you for watching.

‘He Said-She Said’ Dilemma: Basic Principles of Assessing Witness Credibility

October 12th, 2020

Our courts determine witnesses’ credibility on a daily basis. When faced with conflicting oral evidence, how does a court determine which witness to believe? What is the impact of a witness’s appearance, demeanour, or sincerity on a judge’s determination of the witness’s credibility? This lecture addresses these questions and explains the fundamental principles that courts follow in determining a witness’s credibility.

Useful cases: Faryna v. Chorny (1951): https://www.canlii.org/en/bc/bcca/doc/1951/1951canlii252/1951canlii252.html

Frame v. Rai (2012): https://www.canlii.org/en/bc/bcsc/doc/2012/2012bcsc1876/2012bcsc1876.html?resultIndex=1

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.

On a daily basis in our courts, judges have to decide whether to believe a particular witness or not.  How do they make that decision? What magical tools do they have at their disposal? What kind of principles do they keep in mind in deciding the credibility of a witness? This is the topic of today’s lecture.

We begin with our disclaimer that this lecture 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.

Now this witness credibility issue is most pronounced in he said/she said cases—in cases where there are 2 witnesses who have conflicting oral evidence about an incident.  The judges have to decide which witness is telling the truth and which witness is not to be believed.  In cases where there is minimal or no documentary evidence, this issue is common—where there is conflicting documentary evidence or conflicting viva voce (oral evidence) as I said between 2 witnesses both have witnessed the same incident but have different evidence with respect to what occurred in that incident.  Then there may be minimal or conflicting extraneous evidence there may not be any third party or other witnesses or may not be any other documentary evidence that sheds light on the issue that is being decided by the judge.

How do the judges make that decision? We have a common misconception—for a lot of people who come to the court and who have no legal experience—that the judges make decisions about credibility of a witness based on how sincere that witness appears to be. This appearance of sincerity is a broad term that is used and it has many manifestations.  For example, in a case where there are emotional elements—where there are issues, for example, of sexual assault or things of that nature, if the witness is crying when describing that particular instance does that make the witness more believable? Does a witness sound more educated when he or she is rendering testimony?  Is the witness using a language that resonates more with the judge? How is the witness dressed? Is the witness dressed in professional clothes? What kind of color is their attire that they’re wearing? I mean these are things that we notice commonly in our everyday life and especially we notice these kind of things in political debates that happen during the election time.  There is a lot of thought that goes into how a candidate is going to perform in an election debate; what kind of clothes they’re wearing; what kind of suit they’re wearing; what is the color of their suit; what is the color of their tie; what kind of haircut they need to have and how do they come across?

For example, during Hillary Clinton’s campaign one of the common criticisms was that she came across as very cold. What has the coldness of a person to do with anything—that person’s credibility? But, we trust people who are more warm; we connect with people who come across as a bit more warm.  These are the things on a daily basis how a lot of us make decisions about credibility of a person who is before us. 

When we come to court we are worried—a lot of witnesses are worried that a person / a witness who is a better performer in court than them will be accepted as more credible.  That is a common misconception.  That is obviously a concern for people who believe that they do not come across as very well educated, very eloquent witnesses.  But that is not how the courts decide on the credibility of witnesses or at least that is how they try not to decide on the credibility of witnesses. I do believe that judges have their unconscious biases that play into the decision-making and with respect to the credibility of witnesses too. 

But the courts have made significant efforts in laying out principles of determining credibility assessments and they follow those principles or at least try to follow those principles. One of the factors the court will consider is what kind of opportunities for knowledge of that incident that this person / this witness is describing had with respect to that incident. Was the person present at that incident? How far was that person? What was the concentration level? Was the person involved in that incident or was it a bystander? What was the bystander doing? What were the opportunities for knowledge of that incident that the witness is describing? What were the powers of observation? Again, this is relating to the opportunities of knowledge.  If you were watching television and something happened outside your window, what was your ability to go? Was it dark in the night? Where was it? Outside? Was it day or night? Were you able to see clearly? Were there street lights or not? – things like that (power of observation of the witness).

Then witnesses make a judgment about a lot of facts that they that they see—what were the kind of judgments that the witness made? What was the memory? What is the extent of memory of that witness of that incident?  Relating to that is the witnesses ability to describe clearly what was seen or heard.  It has a value with respect to credibility. One of the major things that you want to focus on with respect to witness’ evidence is inconsistencies in the witness’ evidence and weaknesses in the witness’ evidence.  That is one thing that we as lawyers focus tremendously on, especially, if we are trying to prove that a witness is not credible. 

What are some of the internal inconsistencies? For example, if the witness was describing an incident and earlier on in his or her testimony the witness said that there were 3 other people who were also present in that situation and then later on at some other point the witness says that there were 5 other witnesses who were present—then this shows an internal inconsistency in the recollection of the witness. You can expose that depending upon the circumstances of the case. Another inconsistency that can be shown is inconsistency with prior statements.  For example, regarding an accident the witness did provide a statement to the police at the time of the accident.  Now when the witness is testifying at trial the testimony that he or she is providing is inconsistent with what was said to the police at the time of the accident.  Showing that there were prior inconsistent statements, you can show that the witness is not credible. Inconsistency with other witnesses—you juxtapose the witnesses evidence with respect to other evidence and figure out what kind of inconsistency there may be or inconsistency with some of the documents that are in evidence and how do you assess the witness’ credibility with respect to those inconsistencies. It is the hallmark of a good lawyer—who exposes inconsistency and weaknesses in witnesses evidence to prove to the court or to show to the court that the witness is not credible.

This is done in a number of ways. One of the common things that lawyers do all the time at examinations for discovery / at a trial is to approach one specific fact from different angles at different times of their examination. They’re bringing the same facts again and again in different ways to see if the witness provides some testimony that is inconsistent with whatever the witness has said before.  There are so many ways to do that.  Inconsistency is one of the key things that lawyers at least try to find in a witness’s evidence and the judges are cautious that if there is inconsistency and weakness in the witness’s evidence, then it will be hard for a judge to find that witness was credible.

Having said that, another major thing that the court will consider is whether the overall evidence of that witness is plausible.  This is the language used in a very famous case which is the seminal case on the credibility of witnesses Farnya v. Chorny.  The court said, “…(is the witness’s testimony) in harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”  What it means is: does the witness’s evidence make sense when you consider the entire story – does it make sense?  If it doesn’t make sense then it’s hard for the judge to believe that witness and if it does then it’s more plausible.  In all of this the demeanor of the witness, the sincerity and the use of the language is considered but with caution. It is not something that the judge will take right away that the person comes across as sincere and honest and therefore to believe that person.  No.  It is considered but with some caution. Then also the motives of that witness with respect to fabricating evidence are also concerned.

When a judge has to decide to believe a witness or not, how much does a judge need to believe a witness?  It’s not all or nothing kind of situation.  The court may believe none of the witness’s evidence or part of his or her evidence or all of the witness’s evidence.  It is possible for the court to say I believe this part of the witness’s testimony but I do not believe that part of the witness’s testimony.  It’s not an all or nothing proposition. When the court accepts the evidence it may assign different weight to different parts of the evidence.  When the court says I believe that this person is telling the truth, the evidence is credible, that does not mean that the court has to then make a finding of fact on the basis of that witness’s evidence alone. A court may say we’re going to consider this as something that supports this fact but we’re going to look at some other facts too. They may assign a different weight to the testimony or to different parts of the testimony. For one part of the evidence they may say we believe it 100 percent we’re going to rule that this is how the fact was as described by this witness or they may say that we’re going to believe it and we’re going to assign a lower weight/ less weight to this part of the evidence.  That is open to the court with respect to the evidence.

What is the takeaway? You need to always remember that unreliable witnesses can seriously, seriously undermine the success of the case.  It’s very important that the witnesses that are presented are credible and they provide evidence that is credible to the case. I would recommend that you read these 2 cases: (1) Farnya v. Chorny (1951).  This is the leading case with respect to Credibility Assessment of witness.  It is a treat to read this case. I think you can read it over and over again to understand it. This is relied on by courts all the time. Read that case. (2) Another one which is helpful is Frame v. Rai (2012)—which actually expands upon some of the principles that are in Farnya v. Chorny and it will be helpful.

Thank-you for watching.

Basic Elements of Procedural Fairness

October 12th, 2020

Procedural fairness affects all of us in our everyday lives. This lecture explains the concept of procedural fairness and its various manifestations in everyday scenarios.

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.

Procedural fairness impacts all of us—whether we’re in the court system or not, we are always dealing with procedural fairness in our everyday life.  In the court system you may have noticed that a number of my lectures are about procedure – whether it’s Rules of Civil Procedure (whether in small claims court procedure or family law procedure).  In a court system the procedures are often laid out/ defined in great detail because courts are concerned with the process by which the decision-making is done.  The court is trying to ensure that every party who is involved in a court process is entitled to a procedural fairness in that system.  But what happens in our lives outside of the court system? How does the procedural fairness impact all of us on a daily basis?  That is what this lecture is about.

We begin with our usual disclaimer that this lecture 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.

Who is affected by procedural fairness?  As I stated, the answer is all of us—when we are dealing with the public or quasi public institutions—we are always dealing with issues of procedural fairness.  For example, when you apply for employment insurance, when you’re laid off from your employment or when you are ill or when you are on maternity leave or part of parental leave and whatnot you are dealing with procedural fairness – social benefits, welfare, disability matters all are dealt in procedural fairness.  When you are engaging health care, attending hospitals, universities, colleges, when you’re applying for a license (for example, a driver’s license or health card) – all of these instances are examples where procedural fairness is at play. Even in private institutions, for example, when an employer conducts a workplace investigation that investigation is bound by procedural fairness.  There are so many scenarios in our life where we are engaged with procedural fairness.

What is this procedural fairness? Procedural fairness is essentially fairness of the process / the procedure by which a decision is made.  Procedural fairness is not concerned about what is the end result / what is the end decision but the process by which that decision is made.  How do we understand this process?  

Let me give you an example. A complains that B has harassed him.  A comes to you as the employer.  That is the complaint.  You make the decision to penalize B without an opportunity for B being able to respond to the complaint—you believe that B has been harassing other employees all the time.  There have been many instances in the past that B was reprimanded or punished for his harassing behavior.  On the other hand you know A very well. He is a great person (likable person) who doesn’t lie, doesn’t cause trouble in the workplace.  On the basis of that information you just believe that there is no need for B to respond to these allegations – you must have done so and you go ahead and penalize B. That is essentially a violation of procedural fairness for B. Because you have denied B an opportunity to respond to that complaint and you’re taking a shot in the dark because there is 50 percent chance whether B harassed A or not.  By failing to give an opportunity for B to respond, you have violated his procedural fairness.  That’s an example of how procedural fairness works in the process.

What are some of the basic elements of procedural fairness? There are essentially 2 principles and they are in Latin and the English is: 1. Number one is the right to be heard (this is one procedural fairness principle); and, the 2nd is the right to be judged impartially. Now these procedures manifest in many different ways.

Let’s go through the examples of how procedural fairness may work in different scenarios. 1st of all you should understand that the threshold that engages the duty of procedural fairness is quite low. What is that threshold? If an individual’s rights, privileges or interests are at issue then the procedural fairness is engaged and this is a very low threshold—because if you are affected by a decision then obviously your interests are at issue.  If you applied to a certain university and you believe that the admission process was unfair, of course your interests are engaged in the process.   Procedural fairness, number one, has a very low threshold to be engaged—I mean, I can’t imagine any scenario where you may not be entitled to procedural fairness but that’s what it is the threshold is quite low.

2nd what you want to remember is that procedural fairness is flexible and entirely dependent on context. The two principles that I’ve talked about the right to be heard and the right to be judged impartially, they are applied in the specific circumstances of the case.  That is why it is important to know that what may be a breach of procedural fairness in one context may be completely fair in another context.  Procedural fairness is context driven.  The courts or the administrative bodies are looking at the specific context of that case to decide what is procedurally fair in the circumstances of that case.

The 2 procedural fairness principles that we have talked about: the right to be heard and the right to be judged impartially have different manifestations in different circumstances.  I have listed some of the examples of these manifestations: number one is no undue delay.  If it is fair for you to get a decision in 30 days and you have not received a decision for 6 months, then, that may be an undue delay.  That may be a violation of your procedural right / procedural fairness.  You’re obviously entitled to a fair and impartial process.  We talked about it.  You are entitled to / have the right to know the case against you.  In the example that I have given, B is entitled to know what the complaint against him is—who made the complaint, so that he could respond to it.  Then the right to be heard. B is then entitled to do to be heard.  B is entitled to say his truth, to say his side of the story so that the decision maker can make a just and fair decision.

Legitimate expectation means that if you are a person who is affected by a certain decision and there are certain expectations given to you for that process, then those expectations are complied with.  For example, we know that in the Rules of Civil Procedure a party is entitled to file its defense within 20 days or 30 days in certain circumstances. That means that party is entitled not to be noted in default until that time runs out (20/30 days). If that party is noted in default earlier, then that’s a violation of the legitimate expectation of that party. Similarly, if you are entitled to a decision in 30 days and you don’t get that decision for 6 months or a year—that’s a violation of your procedural right for a legitimate expectation.

There is also a right called freedom to conduct one’s own case.  This is again specific to a scenario.  In this case, the Human Rights Tribunal had imposed on a party to provide “Will Say” statements for certain witnesses.  The party said we are entitled to present our case the way we want it.  You cannot force us to present our witnesses evidence.  They challenged that decision and the decision was overturned by the Divisional Court on the grounds that the party was entitled to present its case the way it sees fit—that it cannot be imposed on the party how it should present a case.

Right to reasons: in certain circumstances you may be entitled not only to know the decision but to know the reasons for that decision. An example of this right was in one case where a probationary police officer was terminated from his employment without giving any reasons. And the employer took the position that the Police Act allowed them to terminate the employee and therefore they didn’t need to provide any reasons.  The court said no, you are required to provide reasons to this particular probationary officer because it is procedurally unfair for him not to know the reasons and not to have an opportunity to respond to those reasons.  In certain circumstances this may be your procedural right – to know the reasons for the decision.

Similarly, in workplace investigations the person who is being penalized because of the outcome of that investigation may be entitled to know the reasons why the decision was made against that party. In circumstances where credibility is an issue we know that oral submissions are important.  In certain circumstances where a decision-making body denies one party to make oral submissions even though there were credibility issues that were at play, then it may be held that that was a denial of procedural fairness. 

In some circumstances you may be entitled to an adjournment of certain decision because you need a little bit more time to respond to certain things and it may be considered that if an adjournment is not given to you, in those circumstances, that may be a violation of procedural fairness.  In some circumstances we know that, for example, in a workplace investigation scenario, Occupational Health and Safety Act imposes an obligation on an employer to conduct an investigation for harassment.  In some other circumstances you may be entitled, based upon your complaint, to have an investigation and if the party or the employer in that circumstance does not conduct an investigation, that may be a violation of your right.

What is the take away: you have to always, always, always watch out for procedure. The devil may lie, the devil may work behind the procedure, greater injustice maybe happening because of lack of procedural fairness.  This is something that you need to always watch for. You need to always claim procedural fairness and you need to follow procedural fairness with respect to your rights and obligations.

Thank you for watching.

Family Court Process in Ontario – The Basic Steps

October 12th, 2020

This lecture explains the basic procedural steps required in the court process for the resolution of a family law dispute.

Family Law Rules: https://www.ontario.ca/laws/regulation/990114

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.

In our previous lectures we had explained that there are multiple ways in which you can resolve a family law dispute but should you need to go to a court in Ontario to have your family law matter resolved, this lecture explains some of the basic steps that you have to undergo to resolve your matter in a court system.

Note that this lecture 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.

Family law Rules are Rules that deal with family law matters.  They are quite similar to Rules of Civil Procedure but in many aspects they are different.  What you need to do is go through these family law Rules to understand what is the process; what is the procedure for obtaining/getting relief from the court (from the Family Court). We have provided the link here which takes you to the family court Rules.  (https://www.ontario.ca/laws/regulation/990114 ) They are available for free online.

Here is the process: First of all you will have to bring an application in the court for whatever family law related relief that you’re seeking—whether you’re seeking a divorce or a custody issue or access issues or support issues; whatever the issue maybe you will have to complete an application and then have that application issued at the court. There are different forms for different kinds of applications.  You need to make sure that you are completing the correct form and then you are having that form issued at the court.

You prepare the application (the right application), you take it to the court and you pay the appropriate fee for the issuance of that application.  The court will take that application, keep a copy, put a court file number on it and stamp on it the date of the issuance.  Then you know that you are in the court system and you have a court file number and the application is issued. Once the application is issued you have to serve a copy of that issued application on the respondent.  This could be your ex-partner or the other party who you are taking to court with respect to this application. That application needs to be served on that party.  There are timelines during which you need to serve that application and there are processes by which you are required to serve that application. It is important to understand the Rules—how you are required to serve that application once the application is served.  Then you have to file proof of service with the court.  This confirms to the court by way of an affidavit that you have actually served the application—the application is now served on the respondent.

Now it is the respondent’s job to prepare an answer, serve it on you and file it with the court.  This step is for the respondent – to prepare their answer within the time prescribed in the family law Rules, then serve it on you and then file it with the court.  If the respondent has not filed its answer within the time frame then at this stage you will be able to proceed for a default judgment against the respondent—which is why it is important that the application is served properly—otherwise you won’t be able to get the default relief. 

For default relief, I think, you can look at my lectures which are under Rules of Civil Procedure.  It will give you an understanding of how you obtain and default judgment in the court process

If the respondent has indeed filed a response that means it is contested and it is a contested application. Then the court will require both parties you, the applicant and the respondent to attend Mandatory Information Program.  Both parties are required to attend these programs—separately not at the same time and it may not be in the same location but it is it is a requirement of the process that you attend this Mandatory Information Program.

Once that is done, then the next stage in the process, is case conference. This is before the judge.  Both parties will attend with or without counsel.  The judge’s role in that case conference is to figure out and understand what are the issues in that particular application.  Are there things that could be (the issues) be narrowed down? Are there issues that could be resolved? It’s best to get an overall sense of what the case is about and resolve any issues that could be done by way of discussion by way of some sort of order from the Judge.

When the case conference is completed both parties are required to produce certain documents for the other side—could be financial disclosure or other documents that are relevant to that application.  The applicant has to provide its documents (copies of his documents) to the respondent and vice versa the respondent has to do the same.  Those will be the documents that both parties will rely on to pursue whatever remedy that they are seeking in that application.  The production and discovery process does not have to be after the case conference.  It is one of the steps that needs to be taken.  The production can take place shortly after the Answer has been filed.

In the production if you require further discovery of documents and that is the stage that you go through you may have questions about some of the documents from the other side and you will be able to do that process through the discovery process which is very similar to the process in the Rules of Civil Procedure.

If the matter is not settled then there will be a settlement conference—as the name implies this will be a time when the court will try (it will be a judge who will attend the settlement conference) to settle the case.  If the entire case cannot be settled, it can be part of the case that can be settled and the judge will try to do that but whatever could be done in terms of a mutual agreed resolution, the judge will try to do that. 

If it doesn’t result in any settlement of the case, then the next conference that parties will attend is called Trial Management Conference. As the name indicates the conference is designed—is meant to deal with logistics of scheduling a trial.  Even at the Trial Management Conference the judge will once again try to see if the matter could be resolved.

The court’s efforts are always there to see if the parties can come to some sort of mutual resolution—because when the parties come to a resolution then it’s a resolution that has been crafted by the parties themselves.  It is not something that is imposed by the court because that is what will happen if the matter goes to trial. At trial management the court will figure out if the matter could settle or part of the matter can settle and if it doesn’t then the court will figure out when the trial will take place, for how many days, how many witnesses, etc.  All of these things will be determined at the Trial Management Conference so that when the trial takes place it can take place within the time frame effectively and expeditiously. 

If the matter is not settled at the Trial Management Conference, then of course it will go to trial and after the trial the court (the judge) will give an order with respect to the issues and that is how the matter will resolve in the court system.

Some of the tips that I have for you with respect to the court process:

  • If you are filing your application in Ontario Court of Justice or Family Court then the court clerk will provide you a date of 1st appearance.  This is the 1st appearance where both parties will attend and the court, similar to, a case conference—the parties will attend and the court will have a preliminary view of the case and then deal with some of the basic issues that it needs to deal with.
  • if your application is filed at the Superior Court of Justice, then there is no 1st appearance but you will have a case conference.  Now for this case conference in Superior Court of Justice, you will have to ask the court to provide you a date—it is not automatically provided by the court clerk.  What you want to do is when you file your application and have it issued at the Superior Court of Justice, that is the time, I suggest, that you should obtain a case conference date (at the time of issuance).  Why?  Because the dates that the court will provide will be further down the line—probably in 3 months to 4 months time, depending upon the court that you’re at.  If you want to expedite your process which I believe will be in your interest, if you are the applicant, then you don’t want to wait until the respondent has filed his or her answer and then you ask for the case conference because then it will take another 3 months or 4 months for you to have the case conference.  It’s a great idea to get the case conference at the outset of the application and for some reason if the respondent is not available on that date you can always mutually agree to have another date scheduled for the case conference.
  • The court requires fees for filing of the application and certain other steps. If your personal circumstances are such that you are not able to afford those fees, then remember that there is a process with the Minister of Attorney General—you can fill out a form; you have to provide supporting documents for your income to indicate that you are not able to afford the court fees and then those fees could be waived.  Remember that this option is there and if you need to seek a waiver of the fees, you can apply for it.
  • Once your application is issued, I would recommend that you serve it as soon as possible on the respondent. You have a certain time limit to serve the application anyways. I believe that it will help you if you serve the application as soon as possible because once you serve the application that is when the time clock really starts for the respondent. Once you have served the application the respondent if he/she is in Canada or the US then they have 30 days to file their response.  If they are outside of Canada or the US, then they have 60 days to file their response.  If you delay the service of application then this time clock (30 or 60 days) will not start.  If you have a 1st appearance already scheduled or if you have a case conference already scheduled and you delay the service to a point that the respondent does not have sufficient time before attending the case conference or the 1st appearance to prepare and serve their response, then your 1st appearance or case conference is going to get delayed invariably. So, I think, it makes sense for you to serve it as soon as possible.
  • With respect to service, I suggest, if you are able to afford it to use a process server for service of your documents, especially, the application because there are specific Rules on how the application needs to be served and process servers are professionals—that is what they do. Their job is to serve various documents / court documents and to various parties.  They know the process, they know what kind of affidavit of service document needs to be prepared and whatnot.  If you’re able to afford it then I recommend that you do so through a process server.  Also they are neutral parties. In some circumstances the relationship may be acrimonious, and you don’t want to be serving it yourself or through your family member so if you are able to use a process server my recommendation is to use a process server. 

Remember that just because you have commenced an application in court does not mean that you have to wait for the court to resolve the entire matter.  You can settle with the respondent or the other party at any stage in the court process.  If you are not able to settle an entire matter you can still agree on some of the issues. For example, you may not agree on how the family property is divided but you can, if you’re able to, agree on access or custody issues then you should do that—and agree on those issues.  You can also obtain consent orders on various matters.  If parties agree on how the children may be accessed and how their custody issues are dealt with and both parties are Ok then they can prepare a consent order and have the court approve that consent order. Also remember that you can bring a motion at any stage in this proceeding with or without notice, depending upon the circumstances of your case.  In fact, you can, if the circumstances are such.  For example, if you’re concerned about safety of children and you can even bring a motion prior to the commencement of application because of the urgency of the issue that is there. Bringing a motion—you have that option at any stage and if you need to bring a motion then you can do so.

What you want to remember is that the process for family  law disputes is designed to be fair and it’s designed to be straightforward—that is why it is slightly different from the Rules of Civil Procedure. The court wants even the self-represented litigant to understand the process easily and to follow it and to seek remedies.  So it’s important to read the family law Rules and then look at the legislation that applies to your case which I provided in previous lectures and see if you can obtain the relief that you are seeking.

Thank you for watching.

To Marry or Not to Marry – A Family Law Perspective

October 12th, 2020

This lecture explains the commonalities and differences between married and common law couples with respect to their treatment under family law.

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.

Each couple may decide to marry or live in a common-law relationship based on their personal preferences and personal beliefs—but the law may treat each couple differently based on the nature of their relationship. In this lecture we will explain the commonalities and differences between a married couple and a common-law couple.

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 are the Law Society of Ontario for a referral.

Married versus Common-law partners. What are some of the rights that are the same?

1. Number one child custody;
2. Number two child access; and
3. Number three child support;

It does not rather matter whether you’re married or you are common-law, as long as you have children together the custody access and support issues are dealt with in the same manner—makes no difference. The applicable law with respect to custody and access and child support may be different. For a married couple, they have a choice of choosing between federal laws or provincial laws but with respect to common-law partners the only law that applies to their circumstances is the provincial law. One of our previous lectures explains that.

What are some of the rights that are different?

1. Number one is property and debt: For a married couple they share the value in all of the property and debt and this process is called ”equalization” payments. There is a whole formula for this which we will explain in future lecturers. All of the debts, all of the property and property is not just the house property could be anything – car, furniture, computer, any assets that you may have—are all considered property. Similarly, debt doesn’t matter whether one partner has a credit card debt and the other doesn’t—it does not matter. All of the property and debt is pooled together and that’s where the share of the value between the 2 partners (married couple) is decided.

That could be different in circumstances where there is an agreement between a married couple which could be a marriage agreement or cohabitation agreement and as long as that agreement does not violate statutory rights then, that agreement will be enforced.

With respect to common-law partners, the principle is pretty much straight forward—to each it’s own. If you own a property in your name, that’s yours to keep. The other partner has no rights in that property. Then again if the property is owned jointly, of course, the law will apply and the rights will be based upon your share in that property. The same applies to debt. If the debts have been accumulated separately, then the person who has that debt is liable. The other partner is not.

The property and debt: Even if a common-law couple living in a rental apartment, if only one person has the name on the lease then that person will have the right to stay in that apartment and the other person will not so. The application of the law is pretty straightforward with respect to common-law couples.

2. Another place where the rights would be different is the family home, also called matrimonial home. Married couples have equal rights to stay in the family home and then have the right to claim a share in the value—again equalization payments—that is the entitlement for a married couple. For common-law again to each its own. If you don’t have a share in that property; if it’s not joint; then the person who owns that family home is the person who will keep it.

3. Another kind of right which is different is inheritance. If a married partner dies without a will, then there are specific rules which will automatically entitle the surviving partner (surviving married partner) to certain rights. That is not the case in common-law. There is no automatic right of inheritance if a common-law partner dies without a will. It is important to note the distinction.

There are circumstances in which the surviving partner (common-law partner) may be able to claim certain rights and inheritance but it’s a complicated area. It’s hard to prove but it can be done. The point is it can be done in certain circumstances. But what you want to remember is that there is no automatic right to inheritance when the partner has died without a will.

There are some rights that can be “same”. It depends upon the circumstances of common-law partner and the rights could be the same.

1. Number one is spousal support: As we know a married couple can claim spousal support either directly or through a court. Common-law partner can claim spousal support only if they have lived together as a couple for at least 3 years. That’s in the province of Ontario. I believe other provinces may have different time periods for staying together but in Ontario it is 3 years. If you have lived together for 3 years, only then you can claim spousal support otherwise not.

2. Or if the common-law partners were in a relationship of some permanency for any length of time and had a child together. If you had a child together and the nature of relationship was of some permanence regardless of the time period then you may claim spousal entitlement. With respect to spousal entitlement, one point that you want to remember is that once a common-law partner is entitled to spousal support based on these conditions, then the duration of spousal support or the amount of spousal support does not differ. It’s not a scenario where if a married couple is entitled to spousal support he or she will get more money and then the common-law would get less. Or vice versa. No, that makes no difference as long as a partner can qualify, then length and time period has its own rules and it doesn’t matter whether you’re married or common-law.

3. Welfare and disability benefits can also be the same depending upon the circumstances. If a couple is married, then if they are applying for assistance or disability benefits their combined income is considered in deciding what is the assistance that they will receive. In common-law their combined income is considered only if they have lived together for at least 3 months (not 3 years), 3 months they have shared finances and lived in a marriage like relationship.

4. Immigration sponsorship: As we know a married person can sponsor the other married partner to come and become a Canadian citizen. Common-law spouses/partners can sponsor only if they have lived together for at least one year or they can prove that they were conjugal partners and conjugal partners is a specific term that will be interpreted according to the immigration statutes that apply.

5. With respect to health care decisions, if there is no power of attorney for personal care then a married partner is the substitute decision-maker for the other partner who may not have / who does not have the capacity to make his or her own decisions. In those circumstances the married partner is the substitute decision-maker. In common-law relationships, absent the power of attorney for personal care, the common-law partner is a substitute decision maker only if they have lived together for at least one year or have a co-habitation agreement or have a child together. In one of these scenarios the common-law partner will be the substitute decision-maker when there is no power of attorney.

What you want to carry from this lecture is that it is important, whether you want to marry or not, for you to understand the legal implications of each kind of relationship so that you know how the law will treat your relationship if you ever have a situation that you have to rely on the legal framework.

Thank-you for watching.

How to Get Married in Ontario?

October 10th, 2020

This lecture explains the eligibility criteria and basic steps to getting married in Ontario. Marriage Act: https://www.ontario.ca/laws/statute/90m03 Religious officiants’ list: https://data.ontario.ca/dataset/registered-religious-officials

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.

In the last few lectures we have been discussing issues relating to family law. We have talked about legislation and procedures and whatnot.  Most of the family law disputes are between people who are married or who are in common-law relationships. So, I thought it would make sense to explain how a person or two people can get married legally in Ontario.

We begin again 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 a referral.

Who is eligible to marry in Ontario? Marriage Act is the legislation that deals with marriages in Ontario.  That Act provides for the eligibility:

  1. a person/ two people who are 16 years or older they can get married.
  2. if those individuals or any one of those individuals is under the age of 18 years, then those people / those individuals need a written consent of both parents. If one of the parent has died or parents are living apart, then the parent who has the actual legal custody of the minor can give consent.  In certain circumstances the consent may be dispensed with but you’ll have to bring an application to a judge and that can be taken care of.
  3. another eligibility requirement is that there should not be any lawful reason which will prevent the solemnization of the marriage. One example is mental incapacity. Another example, and I did not know this until I researched this case, that there is an Act called Marriage (Prohibited degrees) Act. That Act actually provides what are the kinds of people who cannot marry each other—which makes sense to us on a commonsense basis.  People who are related lineally (i.e, parents, children, grandkids) – that’s a linear relationship—those are not allowed to marry. Brothers and sisters, of course, half-brother, half-sister and half brother / half sister including by way of adoption—these are people who are not permitted to marry.  This is a specific statute that basically says that these are people who are not allowed to marry and if they marry their marriage will be considered void.
  4. mental incapacity: I noticed a very interesting clause / a section in the Marriage Act. And I thought I’ll bring it to your attention.  That is section 7, which basically says that if you are intoxicated by way of drinking liquor or consuming liquor or drugs at the time of your marriage ceremony, then the official who is conducting the ceremony should not solemnize the marriage / should not issue a license because the person is intoxicated.  Remember that when you attend a marriage ceremony you should not be drunk or intoxicated in any other way.  After the marriage ceremony obviously, should be Ok.

Steps to marry: Pretty straightforward:

  1. Number one: you will have to obtain a marriage license and then you attend a marriage ceremony.
  2. The license is valid only for 90 days so within 90 days you have to attend marriage ceremony or obtain your license once you have decided when you intend to attend your marriage ceremony.
  3. Then finally once your ceremony is over the official will register your marriage and then you can obtain a marriage certificate.
  4. For the marriage license you submit a marriage license application form. It’s a pretty straight forward form. I looked it up quickly. Here is this marriage license application form.  It requires information for both partners—applicant, joint applicant and you fill this out; you pay a fee $125.00; you attend at the office of the municipality and then you pay that fee; you’ll have to carry two pieces of government issued I.D.’s (one has to have a picture on that I.D.). 
  5. Then you attend the ceremony. The ceremony could be civil or religious
  6. It is performed (the ceremony needs to be performed) by a person who is authorized under the Marriage Act – could be a judge, justice of peace, city clerk or a religious official. If you’re using a religious official you want to make sure that that person is actually registered or authorized under Marriage Act. You go to this link and you will see that there is a list available for download or review: https://data.ontario.ca/dataset/registered-religious-officials –  which takes the name of all the religious officials who are allowed to perform the ceremonies in Ontario.

In the ceremony, both parties must attend. You cannot get married over the phone or internet. Then once the ceremony is complete the official will register the marriage. Once the marriage is registered, you can apply for a marriage certificate. Again it’s a straightforward process you can go to this website. I’ve provided the link in the video.  You can go there and you will see that when you scroll down there is a link for ordering a marriage certificate online.  You can click on that and then fill out the form and obtain your marriage certificate.

That explains how a marriage is officially / lawfully done in Canada and in Ontario and in the next lectures we will talk about further issues relating Family Law.

Thank-you for watching.

Part 2: Family Law Ontario – Applicable Procedure and Free Resources

October 10th, 2020

This is the second lecture on family law legislation, rules and resources. This lecture provides information about procedures that apply to family law disputes and lists some of the free resources available to general public in Ontario.

Family Law Rules: https://www.ontario.ca/laws/regulation/990114

Family Law Practice Directions: https://www.ontariocourts.ca/scj/practice/practice-directions/

Family Court Forms: http://ontariocourtforms.on.ca/en/family-law-rules-forms/

Legal Aid Ontario: https://www.legalaid.on.ca/

Justice Net: https://www.justicenet.ca/

Family Law Information Centres: https://www.attorneygeneral.jus.gov.on.ca/english/family/infoctr.php

Community Legal Education Ontario (CLEO): https://www.cleo.on.ca/en

Ministry of Attorney General Website: https://www.attorneygeneral.jus.gov.on.ca/english/family/

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.

In one of our previous lectures we had explained the applicable legislation for family law disputes and we have gone through 4 different pieces of legislation and explained to you briefly what those pieces of legislation dealt with—what kind of family law issues they dealt with.

Today’s lecture is a continuation of the last lecture. We’re going to talk about the procedures that apply to a family law dispute and then some of the resources that are available for free for general public to understand the substantive part of your issues and the procedural part of it.

But we begin again with our usual disclaimer that this lecture 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.

 Family law procedure: the first thing you need to know about family law is that family law has a separate set of Rules.  These are similar to the Rules of Civil Procedure but they are different in certain ways with respect to family law issues. I have provided the link: (https://www.ontario.ca/laws/regulation/990114). 

You can go to this website, follow the link and here you will see Family Law Rules.  It is very important to go through these Rules to understand the procedure that you need to follow with respect to your family law disputes. For example, Rule 5, here, it explains – it tells you where you can commence your application—where the case starts and has to be heard.  Which court would have the jurisdiction to deal with your matter?  You’ll have to read this Rule to understand which court you can go to and then follow these Rules.  Similarly, they will talk about the service of documents and how do you commence an application, how to answer and what not.  All of this is covered in the Rules here and you need to know the Rules.

Second item that you need to know is family law practice direction.  Often times, many individuals—self-represented litigants and sometimes even paralegals and counsel are not up to date on Practice Directions. Practice Direction is something that is issued by courts. These are also procedures which elaborate on the Family Law Rules that we talked about.  What the courts do in the family law Practice Direction is that it explains further how you deal with a family law matter in a specific court.  You go to this website: (https://www.ontariocourts.ca/scj/practice/practice-directions/) , which takes you to the Practice Directions of the courts in Ontario. Once you are in this main page you will see that there are Practice Directions that may be specific to the region that you are in. For example, if you’re in Toronto, then you click on that and you go to the Practice Directions that may apply province-wide but specific to Toronto. When you are dealing with a family law issue it is very, very important to go through these Practice Directions to understand what are the instructions—what are the requirements of the specific court that your case is being heard at.

For example, you’ll have to go through this consolidated provincial Practice Directions which apply to the entire province. Similarly, the Divisional Court Practice Directions apply province-wide.  Then there are Practice Directions for civil actions, applications, motions and procedural matters in Toronto region—so it is specific to Toronto. Then you scroll down here further and you will see a practice direction which is specific to family cases in Toronto region right.  This is specific to Toronto.  Then you’ll have to go through this Practice Directions to understand exactly what you need to do and why it is important.

 I’ll give an example here.  In case you are you are attending a motion in family court or you are attending a conference (you are required) each party to a motion or a conference must file either this form or that form or the parties may file one jointly no later than 2 pm, 3 business days before the date of the motion or conference. If you do not file this form in accordance with the time line here, then, your motion will simply not be heard.  You may not be able to attend the conference.

It is essential that everyone read through these Practice Directions and understand what needs to be done. There is a lot of stuff that is covered in these Practice Directions. For example, what is the procedure for factums, arguments and submission of brief authorities and how do you submit your trial record and whatnot. It is very important that you are familiar with Practice Directions and every time you are attending a court for your family law dispute, you review the Practice Direction to make sure that there is nothing new that you need to follow.

Finally, there are a number of forms that are used in a family dispute matter.  These forms are available free and you can use these forms here—from the law rule forms and you will see that all of the firms that you may need with respect to your dispute are available.  If you’re commencing an application the form is here; with respect to divorce there’s another form and so on and so forth.  We’ll talk about these forms and Rules in the following lectures.  For now, at least, I wanted you to know that these are the procedures and you can locate them easily and the Practice Directions and family court forms that you may need. (http://ontariocourtforms.on.ca/en/family-law-rules-forms/)

There are many, many legal resources. I have provided some that I know of:

  1. Number one, is Legal Aid Ontario. Let’s go to their website (https://www.legalaid.on.ca/). Legal Aid Ontario is a free service (legal service) and you need to have a certain income level to qualify for legal aid. How do you apply for legal aid? You can go here.  You can see that on Legal Aid website it identifies that criminal legal issues, domestic abuse, family legal issues and so on and so forth, these are all the issues that you can get help for if you are able to meet that income criteria for Legal Aid.
  2. If your income is more and you are not able to get legal aid but it is still not enough that you could hire a lawyer on the standard rate, then there is something called Justice Net (https://www.justicenet.ca/). It is a not-for-profit organization.  A number of lawyers subscribe to this Justice Net. What they do—in Justice Net you are able to get lawyers on discounted rates.  If you’re not able to qualify for legal aid you can go to Justice net and find lawyers who are able to provide certain services on reduced rate. On this website you can go down, you can choose a professional area, if you’re looking for a family lawyer put in your postal code and you can find a number of lawyers who may be able to provide help on reduced rates.
  3. Another resource is called Family Law Information Centers: 

(https://www.attorneygeneral.jus.gov.on.ca/english/family/infoctr.php).  

This is now operated by the Ministry of the Attorney General.  What is a Family Law Information Center? This is an office at a family court across Ontario.  Each Family Law Court has an office and they provide all kinds of information and guidance on family law disputes.  They even have at designated times a lawyer from Legal Aid Ontario who is also available to provide summary advice on your legal issue.  So Family Law Information Centers are very useful and they’re available across Ontario in family courts. You can explore this website and check that out.

     4.    Then there is an organization called Community Legal Education Ontario (CLEO). They have their website (https://www.cleo.on.ca/en) which is an excellent, excellent resource for a lot of legal topics and information is available.  They have all of the topics listed here. On family law, you can check their website. There may be topics that they have covered and I have covered and I believe that their lectures are far better than mine so, if there’s an overlap by all means go to CLEO’s website and get that information.

    5.  Finally, the Ministry of Attorney General itself has a website that provides information. I have provided the link here (https://www.attorneygeneral.jus.gov.on.ca/english/family/). You can go through the Ministry of Attorney General’s website and you can see that there are a number of topics that are covered.  There is legal information available.

The lesson to carry from today’s lecture and the last lecture is that it is important for you to understand what the applicable law is in your case.  It is essential that you know the procedure because if you do not follow the procedure you will not be able to get substantive justice that you’re looking for.  And then to know that there are multiple free resources available if you’re not able to afford a lawyer. You’ll have to do a bit more work obviously to understand the law yourself, to do your homework but you can also obtain information online and through Legal Aid Ontario or Justice Net and get your matters resolved. 

Hopefully that gives you an understanding of some of the resources that are at your hand and they are helpful to you in resolving your family law dispute.

Thank-you for watching.

A Landlord’s Liability to Third Parties

October 9th, 2020

In certain circumstances, a landlord (residential or commercial) can be held liable to third parties for their injuries. This lecture discusses a recent decision (February 2020) of the Ontario Court of Appeal where such liability was found on part of the landlord.

Court’s decision can found here: https://www.canlii.org/en/on/onca/doc/2020/2020onca83/2020onca83.html?resultIndex=1

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.

Can a landlord be held liable for the wrongdoing of its tenant which caused some injury or damage to a third party? This is the question that we’re going to address in this lecture and the answer to that question is: in certain circumstances, the answer is yes.  If you want to hear more about how and why I will explain that in the lecture.

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 referral.

Now this question was brought to the Ontario Court of Appeal in this case called Youssef v. Misselbrook. The decision just recently came out in early February 2020.  The case is quite relevant for landlords with respect to their liabilities or potential liabilities to third parties.

What happened in this case? The landlord own a farm property. It rented the farm property to a tenant.  The purpose was that it could use it as a farm to raise domestic animals.  The tenant had kept 5 donkeys (5 mules) on the property.  The property had a fence and a gate and the gate was unlocked. One could pry the gate open by force.  In this case, one police officer was able to push the gate open alone and so that was the circumstances of the gate. The 5 donkeys which were owned by the tenant escaped from the farm through that gate and onto the adjacent road. And the plaintiff, Youssef in this case, was riding his motorcycle in that area.  It was early in the morning around 3 am and he struck one of the donkeys and sustained very serious injuries. Youssef then ended up suing the tenant and the landlord for damages.

What did the landlord say? Prior to this case it is well-known that it is rarely that a landlord would be held liable for the wrongdoing of its tenant, especially, when the landlord is not on the property.  The landlord does not have the day-to-day control of the premises. The tenant is the only one using the property.  But in this case the landlord admitted responsibility for the maintenance of the fence—that was a fact that they admitted and they never withdrew that admission.  Having said that, they argued that keeping the gates locked and preventing the animals from escaping was solely the responsibility of the tenant because those were the tenant’s donkeys and the tenant had the use and control of the premises.

The Landlord said that they had no presence on the property and so accordingly the landlord argued that they had no duty of care. Remember, the concept of duty of care that we have explained in our lectures on tort?  It’s the same concept.  They argued that they have no duty of care and they have no statutory obligations—only the tenant ought to be held liable.  With respect to duty of care there was a subsidiary argument.  The Motion’s judge, who had made the decision earlier, held that the lease was governed by the Residential Tenancies Act.  And the Residential Tenancies Act has a provision that requires landlord to be responsible for the maintenance of fence and certain other areas of the property.  But the landlord argued that this was a matter – this was a commercial lease – that it was governed by commercial tenancy and not residential tenancy. And therefore the duty of care that was held to be on part of the landlord was incorrect.

What did the court say?  The court ruling was—the court first confirmed that Landlord admitted the responsibility for the condition of the fence. That was the primary admission. And then this responsibility required the landlord to conduct regular inspections and repairs. In fact there was evidence from the past that the landlord did in fact inspect the property and the fence on certain occasions and had carried out certain repairs as well.  Then the court held that the landlord failed to notice that the gate adjacent to a road was unlocked. And, then finally, because the landlord had admitted responsibility for the condition of the fence, the court held that it made no difference whether the lease was residential or commercial because they had that obligation.  On that basis the court held that the landlord is liable even though it was the tenant’s donkeys that caused injuries to Mr. Youssef.

Now, what is it that you want to take away from this lecture? Number one, obviously that there could be circumstances in which, if you are the landlord and you’re not on the property and you’re giving the control of property entirely to the tenant, there may be circumstances in which because of the tenants that you may be held liable or you may have direct duty of care obligations towards a third party.  You also want to notice that if you read the Residential Tenancies Act, it does impose certain obligations on the landlord for the maintenance of its property; specifically fences and some other areas of the property. That obligation cannot be passed on to the tenant.  It is the landlord’s obligation. If there is an injury to a third party because of the landlord’s failure to maintain the property or those areas of property, then the landlord will be held liable to the third parties—something to note. Also what you want to make sure is that in leases, if there are responsibilities divided between landlord and tenant within the statutory framework, then those responsibilities are clearly defined and if you require indemnification from the tenant in certain circumstances, then those clauses are there. Those kind of clauses are usually already present in commercial leases.. I also believe that it will make sense for the landlord to monitor the rental property appropriately for its usage. Because of this case, there may be circumstances where if the landlord is not monitoring the property and there is some damage to a third party, it may be held liable.  Finally, if there are ways to obtain insurance coverage for certain cases like these, then it may be a good idea to explore those.  I don’t know if insurance covers can be provided in some circumstances but something to explore and see if you have appropriate insurance coverage for your property.

Thank-you for watching.