Truth & Reconciliation Day Reflection

Some time ago, Inga asked me to look into some resources to present to our firm ahead of the September 30th Truth and Reconciliation Day.  

I stumbled upon the Legacy of Hope Foundation, which is an organization that aims to educate and create awareness about the residential school system. On their webpage, they share videos of survivors that share their story and experience. Listening to survivors share their stories, as well as their grandchildren sharing stories about same, really brings into perspective not only the direct consequence of what happened, but the generational consequences as well.

Since the discovery of mass graves on land where residential schools once stood, a spotlight has shone on the long-standing issue of the abuse and marginalization of the Indigenous People. Children were stolen from their homes and forced to board at residential schools where they were forced to turn their backs on their culture, and everything that is core to their identities, to adopt Catholic ideologies as well as the culture of those who stole their land.

Countless children were dehumanized and physically, sexually, and verbally abused. As of May 24, 2022, there are 4,130 confirmed names of children who died while at residential schools, however, this number is not a final count. The number is likely much higher as residential schools operated from 1828-1996.  

I have been a student in Canada since immigrating when I was four years old. The atrocities committed against the Indigenous people were news to me.

In elementary school, we were taught that settlers came to this land and discovered it, there were a few civil wars here and there, and they put the “Indians” (yes, that’s what my teachers said) in residential schools to “help” them. We didn’t learn about the impact of colonization – rather, we learned about how much “better” the Indigenous People were made through colonization. We were taught a little bit about the different cultures and their styles of living and cultural practices, but never about the real way that people were treated.

In secondary school, Canadian history teaching was focused on WW1 and WW2 and Canada’s role as the “good” country during that time. I don’t recall being taught about the atrocities committed in our country against the people it was stolen from, especially considering that the last residential school closed in 1996.

I was absolutely shocked when I learned that this very recent piece of history was never taught to me. By dismissing and sugar-coating history, we cannot learn from it. We cannot reshape and better the future if we don’t understand the past.

The point of Truth and Reconciliation Day is to both confront a very uncomfortable Canadian truth, while also making an ongoing effort to take action in any way we can.

Thus, on the upcoming Truth and Reconciliation Day, it is important to honour the survivors and the children lost to the residential school system, as well as their communities by pausing, learning and reflecting.  On Truth and Reconciliation Day, our firm will pause and reflect by listening to stories from residential school survivors. As Inga said, it is a time for listening and learning.

Meriam Noori, LLB

(Yet) Another Change to Employment Agreements

If you are an avid blog reader of ours, you may remember that my last blog post was about the importance of getting your employment agreements reviewed periodically. This ensures that your agreements are still compliant with both current legislation and case law, because honestly, they keep changing!  

Some of you may recall that legislation was enacted last year which resulted in the unenforceability of “non-compete” clauses in employment agreements. The presence of these clauses has the power now to invalidate the entire employment agreement you have with your employee. 

Well, I’m (not so) pleased to announce there is yet another change to the requirements surrounding employment agreements.

A recent ruling in the Ontario Court of Appeal regarding termination clauses may have rendered your current clauses (yet again) void and unenforceable.

The Courts have determined that “all inclusive” statements, which state that a terminated employee will be entitled to “all notice, severance, and entitlements under the Employment Standard’s Act, 2000 (“ESA”) upon termination”, are no longer acceptable when there are additional entitlements, such as the existence of benefits. Apparently, the Court felt that if benefits are involved, they can’t be lumped in with “entitlements” anymore.   

What this means is that the termination clauses in your current employment agreements may not be upheld if they are challenged in Court. This would result in your employee’s entitlement to notice not being capped under the ESA – which is kind of the whole point of an employment contract!  

That’s all for now…. Until the next (not-so-soon) change!

Robin K. Mann, Associate Lawyer

Good-Bye Summer, Hello Office

Well, there goes the summer.  Did you get to enjoy it?  I sure did, and had a few sunburns to show for it.  But as with every summer that comes and goes, I always think to myself that I can no longer wear my white pants.   

Speaking of apparel, did your business get to that Employee Handbook before the Pandemic hit?  If not, now is the time to get that in place.  With everyone returning to back to the office more and more – yes I know it’s happening, I’m getting stuck in the traffic to prove it – it has never been more important to ensure there are policies in place. 

Like the mullet’s motto “business in front, party in the back”, the WFH motto was “business on top, comfy on the bottom”.  Tell me I’m wrong.  The comfy pants and nice fuzzy slippers I wore while WFH were amazing, just throw on a nice top, make sure your hair is decent and boom, you have an office worker again.  Unless of course you were unfortunate enough to have to stand up during your Zoom call. 

If you did get your policies in place before the Pandemic, a good review of them is crucial.  There were so many changes in offices policies during that time, whether with apparel or just simple front office policies, you need to sure that these are updated for your current employees, and any new employees. 

You may be ok with the “business on top, comfy on the bottom” motto.  Maybe you do have a more relaxed approach to your everyday office attire, and maybe employees can work from home 2 times a week.  Whatever you decided to implement or change, how else are your current employees and new employees to know? 

Whatever the change, make it so in your Handbook.  That is the only way to ensure everyone is on board and there is ambiguity.

Christine Allan, ILCO Certified Law Clerk

Practicing Law in the Digital Age

When I entered the legal field as an articling student in 2019, I was well aware of the legal profession’s reputation for being resistant to change. But in 2020, I watched just about every aspect of this profession adapt to become digital as courts adopted new technology in order to continue functioning in the midst of an unprecedented Pandemic. Court filings, proceedings, and document commissioning, all things that were once required to be done in person, could now be conducted via Zoom. The court itself seemed to recognize just how much technology had changed the legal field, as Justice Myers wrote in WORSOFF v. MTCC 1168, 2021 ONSC: “Counsel and the court alike have a duty of technological competency”.

The Pandemic may not have been the disruption courts wanted, but it was the disruption that courts needed. Remote hearings helped avoid unnecessary delays and made scheduling easier. Lawyers providing virtual services could reach more clients than they could if they were restricted to an in-person setting, especially clients living in rural areas. Self-represented parties were also much more likely to attend court now that they could do so online.

Of course, there are downsides to virtual hearings as well. Many rural areas in Canada still have poor access to the internet. In many ways, the Pandemic had made the digital divide in Canada all the more apparent. Other concerns questioned the fairness of virtual trials. With in-person hearings, judges and jurors can gauge witnesses’ credibility through their demeanor and body language. With the advent of Zoom hearings, some in the legal field voiced concerns that the loss of in-person observation could impair a judge’s or tribunal’s ability to assess credibility. 

No one is arguing that virtual hearings are perfect, but I’d argue that the overall advantages of virtual hearings vastly outweigh their disadvantages. While it’s true that not everyone has access to the internet, the vast majority of Canadians do. A recent study indicated that 97% of Canadians have access to the internet, and 87.4% have access to unlimited broadband. Those that don’t have access to the requisite technology can be accommodated through hubs in local libraries or in courtrooms equipped to allow for video conferencing. And while its true virtual hearings can impair the ability of a court to gauge a witness’ demeanor and body language, that can also help check the racial and cultural biases that inflect our perceptions and keep the focus centered on more reliable forms of evidence. But above else, virtual hearings have, by in large, improved access to justice in our legal system, and to borrow the words of Justice Myers, “Efficiency, affordability, and enhanced access to justice trump counsels’ comfort and presumptions every time.

With the nation coming out of the Pandemic, it’s disheartening to see some courts release guidelines establishing a presumptive return to in-person hearings for most steps in a proceeding, including case conferences and examinations for discovery. In many ways, this seems like a step backward. Whatever problems virtual hearings may have, many lawyers have argued that reverting to exclusively in-person appearances would make things worse rather than better.

When I look back at my career decades from now, I wonder how new and emerging technology will have changed the legal profession. New and disruptive technologies like AI are already becoming commonplace in big firms and changing how lawyers conduct legal research. And while each new technology will undoubtedly bring new sets of challenges, I for one look forward to the day when I can attend court via hologram from my home office with briefs prepared by my AI assistant.

Max H. Shin, Associate Lawyer

Wage Garnishment in Ontario

As mentioned in previous blogs I’m sure, Garnishments are Court Orders that are obtained by a Creditor after judgment is awarded, where the Court orders a party (the Garnishee) to pay the Creditor the amount provided in the Notice of Garnishment.

How much is garnished at a time depends upon who the Garnishee is.

When the Garnishee is a bank, 100% of the money in the account(s) held at the branch is garnished up to the amount of the Garnishment.  If the account(s) do not have enough funds to cover the full amount of the Garnishment, the account(s) are frozen until there is. 

Money owed to a debtor through work is different.

It must be determined whether a debtor is an employee or an Independent Contractor of the Garnishee.

If a debtor is an employee of the Garnishee, then 20% of their net wages (after taxes) is garnished as the funds become due to the debtor until the amount provided in the Notice of Garnishment is either:

(1) paid in full;
(2) the debtor is no longer employed by the Garnishee;
(3) the debtor pays the amount of the Garnishment in full themselves; or  
(4) the debtor goes bankrupt. 

The above amount does apply to an Order for either child or spousal support.  Up to 50% of a debtor’s net wages can be garnished for support.

However, if the debtor is an independent contractor of the Garnishee, 100% of the amount(s) owed to the debtor by the Garnishee is garnished.

Independent contractors who are essentially self-employed individuals do not have the protections an employee has.

If you are served with a Notice of Garnishment, knowing whether the debtor is an employee or independent contractor is important to determine how much to submit to the Court.  If the wrong amount(s) are submitted, you may be on the hook if the debtor’s circumstances change.

Murray Brown, Licensed Paralegal

        

Some Changes on My Social Media

I’m taking my turn on the Firm’s Blog this week to talk about some changes you may have noticed on my social media (LinkedIn, Instagram, Twitter @ingatalk) over the past month.   Some of my posts have the #LawyerMentor and #LawyerCoach labels and the content is focused on law career happiness, rather than substantive issues in law.

I’m still practicing Business Law:  still kicking butts and taking names, but I’m also being more vocal about another part of my career I enjoy and letting lawyers know that I can help them and also, they can enjoy what they do.

It’s become clear to me post-pandemic that too many lawyers, both young and old think that law is an awful career that is intended to burn you out, make money for other people and suck every ounce of joy you ever had in your life.  This. Is. Wrong.

I have been practicing business law for over 29 years.  I still love my career and I love the fun things I do when I’m not working as well. 

While many people may write that off as being lucky, those people would be wrong. 

My quick backstory is:  I come from humble beginnings.  Both of my parents grew up in Nazi-occupied Holland.  They immigrated to Canada after the War.  My Dad sold appliances for a department store and my Mom ran an in-home daycare.  I am the first person in my family to go to law school.   I do not come from wealth, let alone generational wealth.   I am not from Toronto.  While I did go to law school at Osgoode Hall, that was because I wanted to be a litigator and it was the best school for that, I was naïve about how important making connections was for the future of my career.  I was not hired back from my Articles and was Called to the Bar in 1993 at the height of a recession.  It took me four months of applying to jobs and not getting them before I opened my own firm and grew it from there.  So luck?  I don’t think so.

Because I built my career and am happy I know I can help others so that’s becoming a larger part of what I do.  I’m still litigating and will be doing so for many years to come (sorry opposing counsel, you’re not winning that easily <G>) but I’m also happy to coach lawyers on happiness.

My Coaching work is under the IngaTalk name.   The website is www.ingatalk.ca .   I’m on social media as @ingatalk and you can listen to my IngaTalk Podcast here:   https://tinyurl.com/47sn45uv   .

So now you’re caught up.

Inga B. Andriessen, JD

&

Steps to becoming a lawyer in Ontario – From Someone Going through It !

Most would think that moving and adjusting to life in another country is the toughest part of being an international student. However, the most critical part of making the decision to pursue a degree in another country should be this: what happens after I get my degree?  

I have learned that many students that begin a degree elsewhere often don’t think about what happens afterwards. In my case, I was lucky to have many resources and connections that were able to simplify my understanding of the process to become a licensed lawyer in Ontario.  

Prior to even applying for law schools in the UK I had to figure out which, out of the hundreds of law schools in the UK, offered law degrees that were accepted by the National Committee of Accreditation (NCA).  The NCA only accepts degrees from schools that are deemed to have a qualifying law degree, per the Solicitors Regulation Authority (SRA). Thus, I only applied to programs accepted by the SRA.

Now, in order to qualify in Canada and carry on to take the Ontario Bar Exam, I must either successfully complete an LLM or pass at least 5 NCA exams on various legal subjects, as well as successfully complete a legal writing course. Students may be assigned anywhere between 5-10 exams.    

So, what’s the process? 

  1. Research which schools offer qualifying law degrees
  2. Apply, select, and attend school (the fun part)  
  3. Apply to the NCA for assessment, or apply for an LLM 
  4. Complete NCA exams or LLM, receive NCA Certificate of Qualification
  5. Pass the Bar 
  6. World domination! (Aka, be a lawyer)  

Considering all of this, was it worth it to go abroad?  

Absolutely! 

I had a fantastic experience living abroad; it was a privilege to be able to experience life in another country, as well as make meaningful connections that are still important to me today.    

Meriam Noori, LLB

Why Your Employee Agreements Need an Annual Check-Up

Do you remember the last time you had your employee contracts reviewed by a lawyer? Hopefully, in the very least it was at the time they were created! Don’t get us started on the number of clients who previously created and relied solely on their own employment agreements.  

As laws are constantly changing, we always recommend giving your employment agreements an annual check-up to see how they are fairing. Between legislative changes and new emerging court precedents, you want to ensure that your contracts stay current.

For example, did you know that last year the Courts ruled that you couldn’t terminate an employee for cause without pay? The slim exceptions to this rule include the employee committing serious fraud – but even in extreme cases you should be consulting a legal expert. If you have a clause in your agreement that denies notice and severance to an employee being terminated for cause, it will not be enforceable. Moreover, the inclusion of this clause actually results in the invalidation of the entire employment agreement! Yes, it invalidates the very contract you had created to protect your interests and limit your notice pay obligations. This means you could pay a lot more out of pocket when you terminate an employee then if your employment agreement had been enforceable.

What about a non-compete clause – have on of those in your contract? Courts have also ruled that non-compete clauses, where you prevent your employee from competing against your business after they leave, are also unacceptable.

It even matters what date you have your employee sign their employment agreement. Did you also know that if you have your employee sign their employment agreement on or after their first day of work that the agreement is not enforceable? We won’t get into the legality of “why” in this blog, but it’s definitely not something you want to happen.

While we have only scratched the surface with the many pitfalls that come from an outdated and poorly drafted employment agreement, all we can say is get yours checked out before its too late.

Robin K. Mann, Associate Lawyer

Take care of You and Celebrate

I’m one of those people who doesn’t really celebrate my birthday, or anniversaries.  It can get tiring year after year.  Yes, I’m a year older, thank you.  I don’t really want to be reminded of that.  I do always make sure others in my life are celebrated for their birthdays and other big things.

With everything that we have been through the last two years, we need to take that moment and celebrate, no matter how big or small.  It’s amazing how much better you feel after getting together and celebrating a person, especially if you haven’t seen someone for a while.  Not to mention, how is your Mental Health after the celebration?  I bet you feel amazing and connected. 

Whether it be a job promotion, finishing a project, meeting a specific goal you set for yourself, just do it – celebrate  you, celebrate others. 

We recently just celebrated our newest Law Clerk – Law Clerk Leah.  She has completed the law clerk program and is officially our Jr. Law Clerk, so we celebrated her.  She feels great about her accomplishment, and we are all so proud of her.  We called her day “Leah-Palooza”.  Yes, we even celebrate our co-workers, they are the people we interact with day after day so why not.  Again, another reason why working here is so awesome.

Life is too short, so you go ahead and be proud of yourself, and others for reaching goals, no shame at all!

Christine Allan, Law Clerk  

The Tragedy of the Modern Lawyer

Did you ever hear the tragedy of the modern lawyer? I thought not. It’s not a story that law schools would tell you. It’s not a Sith legend but a story all too common when I sit down and chat with my peers in the legal field.

Whether we’re in litigation or transactional work, the practice of law is complicated, and so it’s often only a matter of time before we’re tasked with doing something that throws us completely out of our element and expertise. But we’re lawyers. Clients come to us with questions, and we’re expected to have the answers. That’s why we get paid the big bucks. So, we roll up our sleeves, put on a stone-cold mask of professionalism, and throw ourselves into the work. But even when we go on to conquer whatever new challenge lay before us, beneath that mask, the feelings of anxiety and self-doubt can still haunt us.

How could it not? What right do we have to give legal advice on a subject we were frantically researching only a few days before? Or take on an opposing litigator several years our senior? These kinds of thoughts lead us to feel like “imposters” in a profession characterized by high standards and even higher expectations. Even worse, we keep these thoughts to ourselves because we live in terror of being exposed before our colleagues and clients.

Sometimes that anxiety and stress will pass. Some lawyers might even say it’s normal; part of the price we pay to be a part of the profession; that it’s a “fake it ‘til you make it” kind of thing. But the fact is, the legal profession has never really reckoned with its mental health challenges, and it shows in the statistics.

According to studies by the Legal Profession Assistance Conference of Canada (LPAC) the rate of alcoholism in the legal profession at between 15% and 24%. The Journal of Addiction Medicine found the rate of problem drinking among US lawyers was between two and three times higher than among other highly educated professionals, including physicians.

And perhaps even more damning than the fact that about 1 in 5 of us are drinking our way into an early grave, is the burnout rate in our profession. The Canadian Bar Association found that 58% of lawyers in Canada have experienced significant stress and burnout. In 2010, the Law Society of Alberta found that close to 30% of lawyers leave the practice of law entirely within 5 years of being called to the bar.

The answer to this problem, like many things in law, will depend on a case-by-case basis. I won’t pretend to have all the answers, but I do know that if you want to solve a problem, you have to acknowledge it exists in the first place. Pretending there isn’t a problem in the face of clear evidence doesn’t work in litigation, so why do we pretend it does here?

Max H. Shin, Associate Lawyer