SAD – Winter Blues

We’re already in the second month of 2023, and the high of the holidays has completely worn off. We’re left with the cold winter months, and for us here in Toronto, we went about 22 days without seeing the sun. 

Our Work/Life Balance meeting last month touched on the Winter Blues or more formally known as Seasonal Affective Disorder (SAD – aptly named, am I right?). The dark, cold mornings, gray skies, and shorter days induce the dreaded Winter Blues. 

Why is it important to identify this, especially at work? If your mind is not right, your focus is thrown off and thus, your productivity and motivation is impacted. When your mental health isn’t at it’s best, your energy levels and concentration are low, making it difficult to perform at your best. One of the biggest keys to success is to prioritize your health. 

Combatting the Winter Blues can be challenging, especially with the shorter days. Some ways to help combat SAD is by exercising, trying to maintain a healthy diet, and even simply talking about it with someone. 

“Seeing the light” will also help boost your mood. I invested in a little light box for those dark days, especially considering there have been so many lately. On my lunch breaks, weather permitting, I will go for a walk and find that that refreshes my mental space to tackle the rest of the day.

Making your physical and mental health a priority will help you beat the Winter Blues. 

On the darkest day of the year, our amazing Law Clerk Leah Dickie said, “from here, every day gets brighter and brighter.” 

So, here’s to looking forward to more sunshine and beating the Winter Blues!

Meriam Noori, LLB

Pepsi, Where’s Your Disclaimer?

I recently watched a four-part Netflix docuseries called “Pepsi, Where’s My Jet?” Aside from the wave of nostalgia that had me reaching for my Tamagotchi, it left me thinking about the necessity of clear and enforceable disclaimers.

The documentary follows the attempt of an American college student named John Leonard, in acquiring a Harrier fighter jet through a 1995 Pepsi promotion.

If you grew up in the 90s as I did, you will recall the same promotion in Canada at the time called the “Drink Pepsi Get Stuff” campaign. This promotion, which came during the peak of the cola-wars between Coca-Cola and Pepsi, was Pepsi’s way of trying to get a leg up on their Coke competitor. To participate, all you had to do was buy Pepsi products and collect the points that came with each product. Points could then be redeemed for “cool” Pepsi swag.         

To advertise this new promotion, Pepsi used a flashy commercial showcasing the prizes that consumers could redeem. Now, if you’re a millennial like me, you may even remember this commercial while watching your weekly dose of Mighty Morphin Power Rangers. It featured a teenager getting ready for school in the morning. Each time the teen put on Pepsi merchandise in the commercial, such as his leather jacket or sunglasses, the Pepsi point total for the item was displayed on the bottom of the screen. The commercial ended with our teenage hero landing in front of his high school in a Harrier jet with “7,000,000 Pepsi Points” displayed on the screen under the aircraft.

This commercial aired in the United States with no disclaimers or fine print with respect to the multimillion-dollar jet.

John Leonard saw this commercial with its clear lack of a disclaimer and saw an opportunity. He figured out a way in which he could acquire the 7,000,000 Pepsi points he needed to redeem the jet for $700,000 USD – he did this by purchasing Pepsi points for 10 cents each, as permitted by the promotion. He ultimately collected all the necessary points and mailed them in to redeem his jet.

Shocker – Pepsi laughed at his attempt to obtain the jet and sent him a voucher for a case of Pepsi. You would think they could at least have sprung for that “fly” leather jacket! Both parties lawyered up and the matter proceeded to litigation.

The result? NETFLIX SPOILER ALERT.

Mr. Leonard lost in court and never got his jet. The court found that the commercial was “evidently done in jest” and that “no reasonable, objective person would have understood the commercial to be an offer.” Pretty sure my 9-year-old self would have strongly disagreed. 

While the U.S. District Court found that a disclaimer wasn’t necessary to show that the jet was clearly a joke, remember all of this could have been avoided with a clear disclaimer in the commercial from the start. The insertion of a disclaimer gets ahead of a possible loophole and may prevent costly and time-consuming litigation, even if the law is on your side.    

Fun fact – the same Pepsi commercial aired in Canada however this version included a disclaimer from the very start indicating that the jet wasn’t available as a prize. Perhaps Canadian lawyers are just ahead of the curve?   

Robin K. Mann, Associate Lawyer

Get Proper ID and You’ll Thank Us Later

Many of you who have read some of my older blogs, you know that there is nothing more I love than finally get a client the money back that they are owed. 


In particular, when a debtor attempts to hide assets such as property or bank accounts, tracking those down and filing a Writ or garnishing their bank account. 

Recently, we received a letter from a law firm regarding a real estate closing that closes in three days.  They were requesting a clearance letter confirming that their client was not one and the same as the person named on a Writ we had filed. 

I’m not sure what information the law firm had suggesting that their client wasn’t one and the same as our debtor, but we certainly were not jumping on providing the letter without doing our due diligence first.

As we have a really good online filing system, I was able to access the file and confirm that in fact, their client was the same as the person we filed the Writ against.  How do I know this?  The ID they provided for their client matched the ID that our client had in their files.  This time it was easy.  Some clients don’t obtain photo ID for the people they do business with, which can make is sometimes difficult to confirm this information.  This time, it made it easier for us to ascertain the information we needed easily. 

What does this mean for our client?  This means that this real estate deal cannot proceed without our client first being paid out.  A win for our client I would say!

We don’t always get this result when we enforce Judgments, but when we do, it’s really satisfying. 

A note for our client, get that photo ID for your clients when you are entering into agreements, you may thank us later.

Christine Allan, ILCO Law Clerk

An Open Letter to Ontario About Its Tribunals

Ontario, we need to talk. You have a backlog problem in your courts but especially in your tribunals. I know it seems like legal professionals have been complaining about judicial backlogs since before the Code of Hammurabi was even chiseled into stone, but you have a serious problem Ontario, and I think it’s time for an intervention.

Tribunal Watch Ontario last year reported that the four largest tribunals in Ontario had a collective backlog of over 67,000 cases. The Landlord and Tenant Board (LTB) alone accounted for 32,800 of those cases. Do you understand what an insane number that is? The Landlord and Tenant Board has less than 100 members to hear those cases. No wonder the average time to a hearing in the LTB has gone from seven weeks to seven months in the last four years.

Now, I know what you’re thinking. “What can I do? I’m just a small province of a measly 15 million people that only accounts for about 40% of Canada’s total GDP. How can I possibly solve this problem?” Well to start, more judges, adjudicators, and court staff would be nice.  Ontario’s population is projected to increase by 37.7 percent over the next 25 years and as a province, we should be making sure that our legal system has the resources it needs to serve that ever-growing population. That being said, let’s also not pretend you’ve been doing a good job at keeping the judges and adjudicators you already have.

Did you know that in the Human Rights Tribunal of Ontario (HRTO), the number of final decisions had fallen from an average of 110 a year to just 16 in 2021 and 2022? Even worse, most of those decisions were written by adjudicators whose appointments weren’t renewed and who had to attend hearings and write decisions after their appointments had already ended. You can’t blame that on Covid. That was all you, Ontario. And while you did allocate an extra $1.4 million in funding last year to hire 35 additional staff for the Landlord and Tenant Board, let’s be honest, expecting 35 additional people to solve a 32,800-case backlog is a big ask from your new employees. 

This state of affairs obviously can’t continue. Justice sufficiently delayed is indistinguishable from justice denied. We need significant reforms to shape our tribunals to be forward facing, accessible, efficient, and modern. But at this point, I’d settle for doing what we have traditionally done as a Province when faced with a crisis, and that is to throw enough money at the problem until we end up with a barely functional system that hopefully won’t come crashing down on us until it becomes someone else’s problem. 

Sincerely,

A concerned citizen

Max Shin, Associate Lawyer

Things to Consider Before You Sue

People occasionally get so caught up in their feelings about being wronged or owed money that they forget to think about some of the important factors to consider before suing someone.

Feelings aside, below are a few factors to consider before you litigate:

Can You Recover?

So, if you win your lawsuit (which isn’t always guaranteed, no matter how strong you think your case is) are you able to collect on that judgment?  Do you really want to spend the money, time and resources to end up with a piece of paper that is worthless?

Ensuring the party you want to sue is solvent prior to litigation is a good idea.  That way, once you obtain judgment, you can issue a Writ of Seizure and Sale of Lands and just play the waiting game to get paid out.  You can also piggyback off another creditors’ judgment if they’re successful at enforcing theirs.  

Doing some online searches, property searches and some sleuthing can give you an idea if you may have a chance at successfully enforcing any judgment you obtain.

The Costs of Litigation

Are you prepared to incur the costs to litigate your matter?

Some lawyers and paralegals offer flat fee services; however, the costs associated with litigation can climb quickly.

If you’re successful, the Rules of the Small Claims Court allow you claim your disbursements and up to 15% of the amount of your claim for your representation.  The amount you get back depends on the Deputy Judge and how they’re feeling that particular day, so the 15% isn’t always what you get obtain.

Be Prepared to Settle For Less

If your claim is defended and you proceed to a Settlement Conference, Deputy Judges encourage the parties to settlement for less than what has been claimed.  You don’t have to settle; however, the Court expects you to have good-faith, candid discussions about the potential for settling.  Some Judges aren’t happy when you don’t settle (blogging from personal experience). 

Deputy Judges will usually make a statement like: “a settlement is where neither party is happy – the Plaintiff settles for less, and the Defendant ends up paying something.”

Settling also can prevent incurring further costs and time if the settlement is right.

Do You Have the Time or Patience to Litigate?

Especially now with the Small Claims Court moving slower than molasses, matters aren’t being heard anywhere near what they used to be.  We are still waiting for 2020 matters to be rescheduled. 

Being on hold with the Court for over 2 hours before giving up doesn’t help either.  It takes a lot of patience and time to litigate in a post-covid era.

The above is not an extensive list, but some of the more important factors to consider before you litigate.  Failing to assess important factors may result in getting a piece of paper you can’t enforce and being out more money before you started.

You may be wronged or owed money, but you also don’t want to get burned a second time when you discover it was all for nothing.

Murray Brown, Licensed Paralegal

Let’s Clear the Small Claims Backlog

Our firm has a fantastic Licensed Paralegal, Murray Brown, who handles all of our Small Claims matters and we have a lot of them. As we look back on the Court controlled pace of litigation in the firm in 2022, it’s very obvious that the Small Claims Court is the slowest of all Courts to get up and running post-Covid Shut Down – and yes, that Court actually shut down.

While no one asked my opinion, oh wait they did, but I never heard back, here are some practical, easily implemented solutions to clearing the Backlog:

1. Hire lawyers with 10 years+ of experience to handle the settlement conference backlog.  Hey, you could even ask them to volunteer and count it towards CPD hours.

2. Bring back night Court. We had this when I Articled in the early 90s, no reason it cannot make a return.  

3. Hire full-time Small Claims Judges on Contract for two years to blow through the trial backlog.

Ignoring Small Claims is impacting low-wage earners who brought wrongful dismissal claims in 2019 and are still waiting for trial, it’s impacting collection litigation started in 2019, meaning debtors are harder to collect against and it’s eliminating justice for all.

Let’s fix this.  It isn’t that hard: it just needs to get done.

Inga B. Andriessen, Principal Lawyer

New Year’s Resolutions

It’s that time of the year again when everyone LOVES making New Year’s Resolutions, and year after year, almost everyone loses motivation in the second half of January.

Whether goals are work related or personal, for some reason people see the annual passage of time as a fresh start and a reason to get their act together.

People tend to set “best wishes” for themselves and hope for them to magically come true, all the while not taking any real steps towards making them happen. It’s almost like wanting to catch the bus, but simply watching it pull up to the stop and drive away.

Can you tell I’m not a fan of them?

Our work-life balance meeting this month covered this topic: How can we set a real goal, but also move to achieve it?

Think about a goal that is meaningful to you, but also manageable and realistic. Goals don’t have to be monumental; they can be as simple as reading a book for 10 minutes daily or taking the stairs instead of the elevator.

I’ll use myself as an example.

I’ve set a goal for myself in the new year to prioritize my health. I’ve taken steps to do so by (finally) unfreezing my gym membership.

If by the time January 2023 ends and you feel you need a positive change, don’t wait until 2024.

“The best time to plant a tree was 20 years ago. The second-best time is now.”

Meriam Noori, LLB

Why Appeals Matter

An interesting case came to my attention just in time for it to be my turn to write the firm’s weekly Blog.   The case is Kiselman v. Klerer, 2022 ONCA 489.    This is a decision of the Ontario Court of Appeal overturning two decisions below it, the first in Small Claims and an appeal of that decision to the Divisional Court. 

According to the Court of Appeal both the Deputy Small Claims Court Judge and the Divisional Court Judge were incorrect.

The facts of this case are that a Residential Landlord sued their former tenant for arrears of rent and damages to the premises in Small Claims Court after the tenant moved out.  

I’m going to pause here to point out this matter was started in 2017 under the Ontario Residential Tenancies Act, 2006 (“the Act”).  That is no longer the Act that governs residential Landlord and Tenant issues in Ontario and this case may have a different outcome if it were started in 2022.

Anyway, back to the case.  At the time the Small Claims Action was started the Act said the Landlord an Tenant tribunal had exclusive jurisdiction for matters if the tenant was still in the unit.  You’ll recall from the facts above the tenant had moved out, so “plain reading” of the Act says that it doesn’t have exclusive jurisdiction.

There were at least three decisions of the Small Claims Court Deputy Judges at that time that said despite that wording, if the Landlord could have with due diligence moved when the tenant was still in possession the Act applied and they had to go to the Landlord and Tenant Board, not the Small Claims Court.

Those decisions were not appealed by the Landlords who lost. That may have been because they didn’t have counsel, didn’t have the funds to Appeal or just didn’t want to carry on.  Regardless, it’s important to keep in mind they were all Small Claims Court decisions.

In Canada we have the doctrine of stare decisis, this means that Courts below are governed by the decisions of Courts that are levels higher than them.  Courts at the same level are persuasive, but not binding. 

The Divisional Court appears to have forgotten that when it accepted the tenant’s argument on Appeal and agreed that the matter should be before the Landlord and Tenant Board.

Fortunately, the Landlord chose to appeal to the Court of Appeal.  In this decision the Court pointed out the clear wording of the act meant Small Claims had jurisdiction and there was nothing to support the Small Claims Court decisions that decided the opposite.  Finally, five years after they started their Small Claims Action the Landlord was able to continue their Small Claims Court action.

They received $ 3,500.00 in legal fees (I’m sure the actual fees were closer to $ 20,000.00) and now they’re back in the cue …. Which means maybe they’ll have Judgment in 2024 given the backlogs.

The point of this blog is not to rail on about Court delays, but it is to point out that Appeals matter.  When parties with legitimate positions don’t Appeal, the Courts can be clogged with numerous similar decisions that are not correct.  Yes, economics factor into Appeal decisions, but ultimately, our legal system relies on the bravery of parties to Appeal incorrect decisions.

Inga B. Andriessen, Principal Lawyer

Our Policy On Workplace Policies

Most employers know that they need a clear and enforceable employment agreement with their employees, but many forget the importance of workplace policies.

Let’s start with the policies you must have in the workplace – these are mandated by legislation. Among the list of required policies that you should have in your workplace are:

  1. Workplace harassment and violence;
  2. Occupational Health and Safety;
  3. Right to Disconnect policy (25 or more employees);
  4. Accessibility for Ontarian with Disabilities Act;
  5. Human Rights and Anti-Discrimination; and, 
  6. Canada Labour Code (Federally regulated workplaces).

Aside from the above required policies, employers should also think about establishing policies that clearly set out their expectations of employee conduct in the workplace.

A well drafted policy can provide a guide for both employers and employees and avoid unforeseen problems in the workplace.  

Optional policies can address vacations, social media use, overtime, attendance, dress code, working from home, and employee disputes (and more). The creation and implementation of these policies can streamline operations in the workplace and reduce any uncertainty regarding the workplace “rules.” 

All policies should be clearly conveyed to employees, so that they understand both what is expected of them, as well as the consequences for their violations of the given policy.

Employers should have all of their policies reviewed annually to ensure that they are still up to date with relevant laws and meeting their internal requirements.

Robin K. Mann, Associate Lawyer

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