Do You Know Your Leave Entitlements?

I’m going to get a little personal here, but it’s for a very good reason.

A close family member of mine over that last year and a half has been on a leave of absence more than they have been actually working.  In June of 2021, they suffered a massive heart attack and had a pacemaker implanted.  They were off work for many months recovering.  They went back to work in May of 2022 and in August, that same family member suffered a ruptured aneurysm and had major surgery.  They are still not back to work and in fact, they are scheduled for another surgery mid-December.  This family member is 47 years old.

Just the other day we were talking and they brought up a radio ad they had heard regarding changes to leaves of absences which they believed increased their leave time.  This caused me to pause, and I’ll you why. 

As I work for this firm, a large part of our practice is employment law.  While I’m no lawyer, I am usually apprised of changes that are being made to the Employment Standards Act (“ESA”).  I was not aware of any major changes that was coming down the pipeline for Ontario employees, but I was aware of some minor changes coming for Federal employees. 

There are 2 points to this story. Point number 1: Make sure you are looking at the legislation that applies to you.  The ESA is not Canada Labour Code (“CLC”). 

Here is a quick breakdown between the ESA and the CLC regarding leaves of absence:

Type of Leave:                   Ontario Employee Entitlement   Federal Employment Entitlement

Critical Illness                    Under 18: 37 weeks unpaid          Same

                                          Adult: 17 weeks unpaid                     Same

Family Caregiver Leave     8 weeks unpaid                            No leave provided

Sick Leave                         3 days of unpaid                           17 weeks of unpaid medical

                                                                                               16 weeks of unpaid re: Covid

Personal                            3 days unpaid                              5 days, 3 are paid

The only change that I am aware of is to the Federal paid sick leave entitlements, which could provide federal employees up to 10 days of paid leave in a calendar year. 

I’m not sure what ad my family member heard, but it could be that they maybe didn’t’ know what their full entitlement was.  To that end, here is point number 2:   You can’t take what you hear on the radio to heart.  There are a lot of caveats to leaves of absences.  Make sure you know what you are entitled to as an employee, and know what you as an employer are required to provide. 

Christine Allan, Law Clerk

      

You really ought to see a tax lawyer sometimes

As a former tax-lawyer, one thing that never fails to surprise me is how often intelligent and sophisticated clients fail to consider the tax implications of multimillion-dollar deals and transactions.

I remember working on a file with a client who had recently sold his stake in a business and wanted to know what the tax consequences would be.  The complicating factor was that even though the client wasn’t a shareholder of the business being sold, the three partners had agreed to split the proceeds evenly between them. With the payout date scheduled for three years after closing, the client decided to wait until a week before the payout to consult a tax lawyer about what kind of taxes he would be paying on those proceeds.

Here’s what he got. When the shares were sold, capital gains tax was triggered on the gross proceeds of the share sale. Now, without any supporting documents for the oral agreement, this payout to the sole non-shareholder partner looked a lot like employment income and would probably be taxed like it was well. Suddenly, his $1,000,000 share of the sale proceeds was starting to look a lot closer to about $300,000 after taxes. Funnily enough, the business that had been sold was a financial investment firm.

The point I’m trying to make is that this is a common phenomenon in both corporate and personal transactions. While practicing real estate law, I’ve seen parents transfer properties to their children without considering the capital gains tax or land transfer tax that would be incurred immediately or in the future as a result of those transactions.

Tax planning can be one of the most consequential considerations in any given transaction, and yet those involved often treated like an afterthought, if even that. So the next time you’re about to transfer or sell millions of dollars of property, try talking to a tax lawyer. 

Max H. Shin, Associate Lawyer

Access to Justice Can Be Difficult

The other day we received a Notice of Trial from the Court.  The date of the Trial was November 1, 2022 at 8:30am.  However, the Notice of Trial was dated November 7, 2022.  This brought on some confusion, especially since the Settlement Conference in this matter just took place several weeks prior.

I tried to contact the Courthouse for clarity, and remained on hold for over two hours before finally hanging up, because I was tired of hearing the same message over and over:

“Thank you for your patience.  Your call is important to us…please remain on the line, and your call will be answered in sequence.”

While on hold, I decided to try my luck by emailing the Court, not expecting a response.  However, their response was just as confusing as their Notice.

We were advised that the Trial date was put “into the queue for November 1, 2023” not 2022 (obviously), however, the Trial still might not take place on November 1, 2023 as it says “SCC COVID 19 NEW HEARINGS TBD.”

I filed a Motion on this particular file in January, 2022.  We’re still waiting for a date.  The issue of our Motion should have been dealt with long before the Settlement Conference took place.

We were told that that our Motion was still in the queue to be scheduled.  Our Motion, that was filed in January, 2022 was still in a queue to be scheduled.  Why are Motions in a year-long queue? 

What has the Small Claims Court been doing that it is taking this long to schedule a Motion?  For the record, we are still waiting for Assessment Hearings to be scheduled that were requested back in 2020.

There has been essentially radio silence from the Small Claims Court to explain why things aren’t progressing as they should.  You would think after two years since the Pandemic started that things would go a bit smoother.  But alas, they are not.

Sometimes access to justice can be difficult.

Murray Brown, Licensed Paralegal

Different laws for different Court Houses is not OK

There was a time when a Blog with this title was only, ever about Small Claims Court.  That’s not the case today.

In Ontario, the Rules of Civil Procedure govern steps in a lawsuit.  The Associate Judges and Judges interpret and apply those Rules and in the past, different courthouses have had different procedures for applying the Rules.

However, we’re in a situation in the Toronto Court House now where the Judges are deciding how lawyers will run their files and that is not OK.

If you want to bring a motion in front of a Judge in Toronto you must first attend virtual  Civil Practice Court (CPC Court).   You and the other side agree to a timetable for your matter ahead of time and the Judge endorsed the record to make it official and give you a hearing date.

Less than a year ago the Rule was that you had to be heard within 100 days of CPC Court or explain to the Judge why you need more time. Evidently, those days are gone, though the Practice Direction, as of the date of writing this Blog, still says you need to arrive with dates within 100 days.

However, rather than schedule matters further out, or provide counsel and their clients the choice of continuing with the motion or choosing not to go that route, Judges are refusing to let counsel schedule motions.

That. Is. Not. In. The. Rules.

I appreciate the Courts are backlogged.  I appreciate we need more Judges.  Neither of these are an excuse to refuse to let Counsel run their case.  Prohibiting a party from bringing a motion they want to bring is Justice denied.  If it doesn’t succeed that gets addressed on costs. 

My suggestion for fixing the backlog

The Toronto Court House is backlogged because every wrongful dismissal plaintiff’s firm is bringing their claim in Toronto to take advantage of mandatory mediation.   A simple Rule change requiring employment claims to be brought where the plaintiff was employed will help curb some of the pressure.  Another option, make mandatory mediation Province wide.

Similarly, if Toronto Judges award significant costs against plaintiffs who should have started their action in Small Claims, rather than Superior Court, that will send a message as well and clear out a lot of the cases in Toronto.

Of course, we need more Judges appointed to hear the cases.  However, taking the steps I suggest above would go a long way to clearing out many of the cases currently grinding the Toronto Court House to a halt.

Inga B. Andriessen, JD

Importance of Voting

(Alternate Title: Voter Turnout – SHOW THE F UP!)

In light of the recent Municipal Election, I’ve swapped my law student hat for my political hat, and I decided to write this week’s blog on the importance of voter turnout and participation.

The Association of Municipalities Ontario reported that out of 10,707,112 eligible voters, only 33% voted. Generally speaking, voter turnout for municipal elections is often lower.

Who cares about the municipality, Meriam?

Well, your municipality is responsible for your roads, your parks, your garbage collection, local land use planning, emergency services and so much more. Even though it doesn’t seem as big as a federal election, it still matters.

Why is this even important, Meriam?

It’s indicative of a larger issue. This means that 66% of the population in Ontario didn’t get the chance to decide for themselves who will lead their municipality or what will happen in them. 66% of the population put that choice in the hands of the 33%.

I only care to vote at the Federal Elections, Meriam.

Good for you! However, according to Elections Canada, only 62.6% of eligible voters voted at the federal level in September 2021.

Research has shown that those who do turn up to vote are often older and wealthier, thus creating a need to encourage younger people and those with more diverse backgrounds to vote. With voter turnout being what it is, we end up having a huge portion of the population’s interests unrepresented through voting, while other groups have a greater opportunity to have their interests represented.

I myself am guilty of not showing up. While I usually do exercise my right to vote, in the recent municipal election, I simply went home after work and forgot to vote.

Don’t be like me – go out and VOTE!

Meriam Noori, LLB

   

The Electronical Monitoring of Employees  

Are you electronically spying… ahem …we mean “monitoring” your employees? Well, you will be pleased to know that nothing under the Employment Standards Act, 2000 (Ontario) (“ESA”) prevents you from doing so.

It is not uncommon in this digital age for employers to monitor employee emails, phone calls and even GPS track their company vehicles. This can be done for a variety of reasons including those we often hear when we order a pizza: “for quality control and training purposes.”  

However, on April 11, 2022, the ESA was amended to create new obligations regarding the use of electronic monitoring. Now, any employers with 25 or more employees must have an Electronic Monitoring Policy in place.

This policy must be prepared and provided to employees by no later than November 10, 2022.

While the ESA does not contain a definition of “electronic monitoring” for purposes of this policy, the legal definition usually used by the Courts includes all forms of employee and assignment employee monitoring that is done electronically. Yes, it is meant to be a catch-all.

For those employers that do conduct electronic monitoring – your policy must describe the type of monitoring you do, and its specific purpose.

Some of you may be wondering whether you need to do anything if you have 25 or more employees but don’t engage in any electronic monitoring. Unfortunately, this policy applies to you as well. If you do not do any electronic monitoring, but you have 25 or more employees, you must have a policy confirming that you do not engage in any electronic monitoring.

As the deadline for this policy looms closer, don’t wait any longer to reach out to us to get an electronic policy for your workplace.

Robin K. Mann, Associate Lawyer

     

Ministry’s Ontario Business Registry – A Year Later

We are now just about a year after the launch of the Ministry’s Ontario Business Registry and I thought it would be a great chance to revisit my previous blog on the matter.

When I first wrote about the new Registry, I mentioned the issues with learning curves and system updates.  In the early days, it seemed more often than not there were issues with the site lagging, or quiet often being down and not operational. 

Since the launch on October 19, 2021, I can say that using the Business Registry has become easier and more user friendly, which shows that when we were surveyed to provide feedback, the Ministry of Government and Consumer Services took us seriously and implemented changes that have made the site more efficient. 

The ease of filing Annual Returns, Articles of Dissolution and Amendments makes my job to be completed without significant delays and I’m able to complete tasks without a long wait to receive filed documents back.  There were times waiting more than six weeks for the filed Articles of Amendments back from the Ministry. 

That said, it’s still important to know when you need your lawyer to help you.  As we have always stated, it is never a good idea to incorporate without the assistance from your professionals. 

Just because the Registry system has made filing more accessible doesn’t mean you should do it yourself.  We are still fixing issues for clients who chose to do this, it just means we can get it fixed faster. 

Christine Allan, Law Clerk

Changes May be Coming to Civil Proceedings

In my last blog post, I discussed the role of technology in improving the efficiency of our judicial system and increasing access to justice. For those of you who might not have watched the opening of the courts earlier this month, Chief Justice Geoffrey Morawetz highlighted the various challenges the courts we’re facing today and the improvements that were being made to tackle them. Some key takeaways included:

  1. Virtual hearings are now a permanent fixture for court proceedings.
  2. The Court’s information management system will soon be modernized. 

While the modernization and digitization of the existing system are significant, it is not enough to solve the court’s problems. Courts today are still understaffed and overbooked. Anyone who has visited the Civil Practice Court in Toronto over the last few weeks knows that dates for Long Motion Hearings aren’t even available until late Spring of 2023.

Delays and issues of access to justice were already at a breaking point even before the pandemic, so it’s not surprising why Chief Justice Morawetz identified civil proceedings as an area where major changes needed to be made. What did come as a surprise, was when he stated in no uncertain terms that the Rules of Civil Procedure would have to be overhauled.

Changes to the Rules of Civil Procedure aren’t new. Since the Rules came into effect, there have been many attempts to reform the Rules in an attempt to facilitate more accessible, more expeditious, and more cost-effective litigation. Given the current state of the court system, I think it’s safe to say that those attempts have not been successful.

While I’m cautiously optimistic, I recognize there are good reasons to remain skeptical. Meaningful change requires strong political will and a significant commitment of resources. New rules and systems won’t address the shortages of judges and staff in our court system and given the chronic underfunding of the courts in Ontario, it’s an open question as to whether the province is actually willing to commit the necessary resources to make sure the new system doesn’t end up as slow, expensive, and inaccessible as the old one.

As the process of overhauling the Rules begins over the next two years, it will be interesting to see what solutions the Courts come up with in the interim to address the current backlog. Chief Justice Morawetz is correct. The current situation cannot continue. So, whatever the case, I wish him success in his endeavour to shape the Court to be forward-facing, accessible, efficient, and modern.

Max H. Shin, Associate Lawyer

All Small Claims Offices Need to Get on the Same Page

There is a new frustration that is slowly becoming a problem: Small Claims Court offices making their own rules and procedures which do not follow Ministry guidelines, which is causing unnecessary delays.  Here are a few examples:

We recently served a corporate Defendant by mail.  Pursuant to the Rules, when you serve a Corporation by mail, the Directors must also be served with the Plaintiff’s Claim.

The Small Claims office took refused to accept our Request to Clerk to note the Defendant in default because we had to file an Affidavit for Jurisdiction, because the Director resided outside the jurisdiction of where we sued.  They were wrong, but it did not matter.

An Affidavit for Jurisdiction is filed when you need to establish that you are proceeding in that specific jurisdiction, which is based upon where the cause of action arose or where the Defendant resides or carries on business.  Where a director resides however, is irrelevant. 

Another Small Claims Court office refused to accept our service on a law firm, who was the Defendant.  The Court said that we did not obtain the firm’s consent to serve them.  The Plaintiff’s Claim clearly indicated they are the Defendant, and not the Defendant’s representative.

When the issue was finally dealt with and we were able to file our request, our request was rejected because the firm filed its Defence while we were trying to note them in default.  The law firm filed their Defence and swore an Affidavit of Service that they served us with their Defence, which they did not do.  The Court office advised us that they accept everything that comes in, regardless of whether it is correct or not, just not our Affidavit of Service and Request obviously.

We issued a Notice of Garnishment and the Court office refused to release Garnishment funds until we issued a Writ of Seizure and Sale of Lands, claiming that was their policy.  No other Court has ever made this request, ever.  Filing the Writ took additional time and expenses to do so, which was unnecessary.

Filing materials electronically has become convenient, however, it can take days and sometime weeks for the Court to acknowledge a filing.  So, when they make unilateral decisions that affect timing, it causes further delays in moving our matters forward which has been quite the hinderance since the Pandemic.

The above are just a few examples of how Small Claims Court offices create their own policies that do not align with Ministry guidelines and the Rules of the Small Claims Court, which makes the process not only unproductive, but it complicates matters further when additional steps have to be taken simply because a Courthouse creates their own policies.

We need all Court Offices to be consistent, it’s about Justice.

Murray Brown, Licensed Paralegal

Let’s Get you Paid

Lots of collection litigation is rolling into the firm again.  The talk of the R word, the increase in interest rates are all coming together to have people take a hard look at their receivables.  Of course, the fact we’re just into the last quarter of 2022 impacts that as well.

So, how do we help you get paid?

Step one (usually) is to send out a letter to the party who owes you money giving them a set timeline to pay or we’ll sue. 

Over the past 29 years I’d say about 60% of the demand letters result in payment.  Something about getting a lawyers letter, instead of a collection agency that can’t do anything but refer to a lawyer, that brings out the cheque book (or 2022 equivalent).

If the letter doesn’t work, we sue.  Plain and simple.  Let’s issue the claim, serve the claim and wait to see if the debtor defends.   We don’t delay this step because the longer time passes, the harder it is to collect the judgment – we want to get you paid while there are still assets around.

We move for judgment as quickly as we can, knowing which Courts are able to process defaults quickly is a benefit to our clients. 

We also understand that garnishment is more than bank accounts and wages – we’re creative in finding money for our clients.

While I’ve just written about what we do, let me pause to tell you what we don’t do: we don’t do collections on contingency.   In Canada the winning party to a law suit gets their legal fees in their judgment, so you will get made whole or close to it, provided the debtor has assets.

If that doesn’t seem fair to you, well that’s o.k.   We can help you with credit applications so that you are better able to assess your risk in the future and don’t need to litigate to get paid.

So, you ready to get paid? 

Inga B. Andriessen J.D.