Our Take on Things

So, you have a Trial date scheduled.  What now?

At least thirty days prior to the Trial date, all documents the parties plan to rely upon should be served on the opposing party and Court.  Usually, documents that haven’t been served cannot be introduced as evidence, however, some exceptions do apply.

Trials are being heard in person, unless there is a valid reason that the Trial should take place by Zoom.  A Motion needs to be brought and leave of the Court must be obtained for a Trial to take place by Zoom, otherwise, Trial in person it is!

The Deputy Judge, Court Clerk(s), the Plaintiff(s), Defendant(s) and their legal representatives (if any) are the only parties present in the Courtroom at the start of a Trial.  All witnesses (who are not the Plaintiff or Defendant) are required to wait outside the Courtroom and are only called in once it is their turn to testify.  This is to ensure no witnesses hear the testimony of other witnesses.

At the start of the Trial, the parties will give their opening statements which outlines their case, starting with the Plaintiff.

Once opening statements are made, the Plaintiff will start calling their witnesses.  The witness is sworn in, either by Oath or swearing on a Holy book.  They then identify themself for the Court by providing their name and spelling it out for the record. 

Examination in Chief is the term used to describe the questioning of a party’s own witnesses.  Cross Examination is the term used to describe the questioning of a witness by the opposing party.

Once the Plaintiff completes Examination in Chief and the Defendant concludes their cross examination, it is the Defendant’s turn to call their witnesses.

Once testimony has concluded, closing arguments (or submissions) are then made by the parties.

The parties will make their final argument to the Court based upon the testimony and evidence submitted to the Court as to why they should reign supreme!

Depending upon the time the Trial concludes that day and the complexity of the issues, it is at the Deputy Judge’s discretion to allow arguments to be made orally that day or in writing.

If submissions are made in writing, a timeline is provided for both parties to deliver their submissions to the Deputy Judge for consideration.

A Deputy Judge has up to six months to deliver their decision from the date the Trial took place, regardless of if submissions were made orally or in writing.

Once a decision is delivered, the parties will then make cost submissions.  The successful party will make submissions for the maximum costs they can claim, and the unsuccessful party will argue why the successful party isn’t entitled to the costs requested.  The Deputy Judge will then make an Order as to costs.

It should be noted that not all Trials are completed in a day.  If a Trial goes into day two, etc., that date is set to the next available date the Deputy Judge is available and can take several months to be heard.

The Trial process is quite extensive, however, with proper preparation and organization, the Trial should progress smoothly….you hope.

Murray Brown, Licensed Paralegal

Life gets in the way, we get it.  We also understand that there are always emergencies.  However, when it comes to lawsuits, construction liens and incorporations, rarely should these be things that take a back seat.

There are limitations in place when it come to commencing a lawsuit, and there are strict timelines in place for construction lien matters.  These are things that should be addressed well before the limitations are up.  This should be pretty simple, especially if you follow our 30-60-90 sue™ method when dealing with payment from customers.

For construction liens, timelines are strict and following the 30-60-90 sue™ method will not work in your favour.  In a nutshell, you have 60 days from the date of last attendance, completion of the project or termination of the contract to register your lien. 

What do you do when your customer is making promises to pay, but keeps delaying?  Involve your lawyer early on and have them make a demand for payment.  The customer usually then understands that you mean business, and more often than not will result in you getting paid and actually save you money by not having to commence litigation. 

Incorporations are another thing you don’t want to wait until the last minute.  You will need time to consult with your lawyer and accountant, and take into consideration their advice to you.  There are different types of corporations, some of which can be very complicated.  You will need to ensure you are incorporating for the right reasons, and to consider any tax consequences that could be involved with it.     

If there is one thing that you are going to take from reading my blog today, I hope that it to be to just not wait.  At the very least, get your lawyer in the loop as early as possible, it could actually save you money in the future.

Christine Allan, Sr. Law Clerk

Employment law in Ontario serves as an important framework to protect the rights and interests of both employees and employers in the province. Understanding these laws is crucial for managing a workforce in Ontario.

Key Points:

1. Employment Standards Act, 2000 (ESA): The ESA sets out the minimum standards that employers must adhere to, including minimum wage, overtime pay, and vacation entitlements. It also governs termination and severance pay, ensuring fair treatment for employees.

2. Human Rights Code: Ontario’s Human Rights Code prohibits discrimination and harassment based on various grounds, including race, gender, disability, and religion. Employers must create inclusive workplaces and accommodate employees with disabilities.

3. Occupational Health and Safety Act (OHSA): OHSA ensures workplace safety by requiring employers to provide a hazard-free environment, proper training, and safety protocols. Employees have the right to refuse unsafe work without fear of retaliation.

4. Employment Agreements: Clear employment agreements are essential for defining the terms and conditions of employment. These contracts outline job duties, compensation, and termination clauses, reducing possible disputes in the future.

5. Termination and Severance: Ontario law mandates that employers provide reasonable notice or severance pay upon termination. This amount varies based on factors like length of service.

The above is just a snapshot of all there is to employment law in Ontario.

Understanding employment law is necessary for employers to ensure fair treatment, safety, and compliance. If you need help navigating the choppy waters of employment law, reach out to us.

Robin K. Mann, JD, Associate Lawyer

So ….. not gonna lie.  When I read the headline in an Ontario lawyer paper that two law firms I frequently have employment litigation files with are fighting it out at the OLRB about whether paralegals are entitled to vacation pay, I had to dive in and learn more.  

My personal feeling is that paralegals are definitely entitled to vacation pay.   The only people whose vacation is not paid in a law firm are lawyers and articling students – hell, we can make them work on Christmas if we want.  I’ve never wanted to do that, by the way.

Anyway, getting back to watching the fight.  From a strictly optics point of view, neither firm can afford the loss reputationally.  If you lose, your employment firm loses credibility and presumably clients.

As a business law firm, when clients ask us about litigation, the optics and impact on business is always a topic for discussion.  Of course, if you’re simply an employment mill, law firm, then you may have a blind spot.

Can’t wait to see how this turns out and I will be very disappointed if it settles with a gag order.  Not surprised, just disappointed.

If you need me, I’ll be eating popcorn and refreshing OLRB decisions on canlii.org .

Inga B. Andriessen, JD Senior Lawyer

After a party has been served with the Plaintiff’s Claim and they serve and file their Defence, the matter gets placed into the queue by the Court to schedule a mandatory Settlement Conference.

The purposes of the Settlement Conference are:
1. To settle the matter;
2. Resolve some of the issues/narrow the issues for Trial; and
3. Orders for the disclosure of all evidence which a party will rely upon at Trial but not have yet been served.

All documents you plan to rely upon at Trial should have been attached to your Plaintiff’s Claim, but if they weren’t, they must be served within 14 days of the Settlement Conference, together with your List of Proposed Witnesses. 

The List of Proposed Witnesses provides the Court and other side with the contact information for who you intend to call as a witness.  The List of Proposed Witnesses is not set in stone, and can be updated as the matter progresses. 

Settlement Conferences are presided over by a Deputy Judge and held through Zoom.  The only parties present are the Plaintiff(s), the Defendant(s) and their representatives (if any).  Witnesses are not permitted to attend at the Settlement Conference.

A Settlement Conference is a casual meeting, and anything said during the Settlement Conference remains confidential and cannot be used at Trial.  Witnesses are also not permitted to know what transpired during the Settlement Conference.

If the party is a corporation, someone within the organization who has knowledge of the matter and authority to settle on behalf of the corporation can attend on its behalf.

The Deputy Judge’s role in a Settlement Conference is to act as an intermediary between the Plaintiff(s) and Defendant(s) for the purposes mentioned above.

The Plaintiff(s) will be given the opportunity to present their case in a general manner, and the Defendant(s) are then provided with the same opportunity.

The Deputy Judge will then provide their opinion on the strengths and weaknesses of the Plaintiff’s Claim and Defence and provide guidance on the parties’ positions.  The Deputy Judge will also attempt to facilitate a settlement between the parties if there is an appetite to do so. 

If the parties do not come to a resolution, the Deputy Judge will endorse the Record that the matter is to be scheduled for Trial.  Usually, it is the Plaintiff who pays the Trial fee, and once the Request to Clerk is filed with the Court and the fee paid, the matter goes into the queue to be scheduled for a Trial date.

At the end of the Settlement Conference, the Deputy Judge will usually ask the parties:
1. How many witnesses each party plans to call;
2. How long they anticipate the Trial will take; and
3. Have all documents been served.

If one party makes a request for certain disclosure, the Deputy Judge will make an order for production of those documents.  If nothing specific is requested, the Deputy Judge will usually order that “all documents to be relied upon at Trial are to be served within 30 days of Trial,” which is in accordance with the Rules.

Settlement discussions can continue up to and including the Trial date if the parties wish to do so.  There is no timeline on settlement.

Settling on your own terms does have its benefits, which include:
1. You avoid spending a day or more in Court;
2. The costs of going to Trial (your time, legal representatives, etc.);
3. Potentially losing, and having to pay more, paying the other sides costs, etc.;
4. The stress of going to Trial is lifted; and
5. You control the narrative, rather than leaving the control at the hands of the Court.

Parties must attend the Settlement Conference in good faith to attempt to resolve the issues, however, you are entitled to your day in Court and do not have to settle if you do not want to.

Murray Brown, Licensed Paralegal

I have a few files with counsel that make me smile.  These counsel will speak aggressively on the record, state their positions and argue passionately for their case.  Once the argument is done, we are completely friendly with each other and to the casual observer appear to be good friends.

Another type of counsel is the one who knows litigation is a game and all they’re doing is playing their role until it resolves.  This lawyer isn’t particularly invested in their client’s case, it’s just another paper to push.  Those lawyers are relatively easy to deal with as they don’t appear to care about the end result, unless their firm doesn’t get paid.

The more difficult counsel to deal with is the counsel who have taken on the emotions of the file (don’t be that lawyer) or the counsel who have no clue what they’re doing and think that lashing out unprofessionally masks that fact.  It doesn’t.  It screams it from the roof top.

Counsel in this last category often argue that civility means you have to coach them on their job and that the very act of taking an opposing position to theirs is bullying.  It is not.  It is litigation.

If you are in this last bundle of counsel, you likely are not enjoying litigation.  Dare I say, it’s not for you.  The good news is that there are many other areas of law that won’t put you in the adversarial role our system is built on.  You’ll be happier there.  Please. Go practice elsewhere.

Inga B. Andriessen, Principal Lawyer

How is it that the summer months are already almost over?  Did you get to do everything you wanted to?  Did you have some projects you wanted to get done and actually completed them? 

If you are anything like me, then you feel that maybe you wasted the summer months away.  But did you really?  When I think back on what I did during the summer I realized that I got to enjoy some of my favorite things a lot more that usual, especially my back deck.  I spent quite a bit of time out there, and even got to spend a few hours on weekends lazing around in my hammock enjoying the sounds of the birds and the wind blowing the trees.  It wasn’t a complete waste, I got to do lots of summer fun activities.    

That’s the personal side of summer – what about the professional side of summer? 

We had a large project on the go this summer in the office, which took had to be completed in stages.  It was a big undertaking for only a few people in the office, and I was one of them.  It involved learning a new product and implementing that in stages into the office, with the final push into using it full time just recently, meaning showing everyone in the office how to use it. 

Not many of us like change, but sometimes change is a good thing and overcoming that could lead to easier ways of doing and completing tasks.  In my opinion, what better time for a change than the summer? 

While professionally I didn’t have a lot of on the go, I certainly was able to ensure the big project was started, implemented and used office wide in a smooth fashion, and all before the craziness of the fall. 

Now back to my original questions, are you ready for the fall?  I am, and I’m glad to get that big project done so that it opens up my plate to other new and exciting projects. 

Christine Allan, Senior Law Clerk

Despite what the internet may tell you, setting up a corporation yourself is not as good, or as simple, of an idea as you may think. We see it all the time, people fill out an online form, hit submit, and relish the simplicity of the process. Well, we are here to tell you that its not as simple as it appears.

For starters, those that self-incorporate often only create one class of shares to issue shares from to the corporation’s shareholders, rather than separate classes. This means that if one shareholder decides to declare a dividend, everyone in that class must also receive the dividend. This leaves little room for flexibility, especially when shareholders may have different tax plans. Further, these different share classes can rank equally or otherwise, depending on the objectives and contributions of the shareholders. There really is a lot we can do when setting up a corporation. This is just the tip of the iceberg when it comes to oversights by those going it alone when incorporating.

Another common mistake for those that self-incorporate is that they don’t organize a corporate minute book. A “minute book” is a corporate record of the corporation, often organized in a special binder, consisting of Articles of Incorporation, bylaws, shareholders agreements, share registers, directors’ registers, officers’ registers, and corporate resolutions. While minute books are a legislative requirement, they are often either not created or kept up to date with annual resolutions.

We often have clients come to us to amend their Articles or organize their minute books when they are looking to take on an investor or sell the corporation. Properly organizing your corporation is ultimately inevitable, whether you do it now or two decades down the road when you are required to do so by a potential purchaser. Save yourself the hassle and stress in the future and let us keep your corporation up to date for you. 

Robin K. Mann, Associate Lawyer

Construction Lien matters are on the rise with the downturn of the economy, so I’m taking my turn on the Blog to get super legal about how we can deal with liens quickly at times.

Under s. 47 of the Construction Act, a claim for a lien can be discharged by way of a motion. On its surface, a s. 47 motion to discharge a lien is similar to a Rule 20 summary judgment motion under the Rules of Civil Procedure because the test for both is whether there is a triable issue with respect to any of the bases on which the relief claimed is sought. However, there are some important procedural differences which the court recently clarified in the case of Built By Engineers v Coronation Medical Plaza, 2023 ONSC 2969 (CanLII).  

In a motion for summary judgment, Rule 20.04(2.1) and (2.2) of the Rules of Civil Procedure, permit a judge to exercise “enhanced” fact-finding powers including weighing evidence, evaluating the credibility of deponents and drawing reasonable inferences based on the evidence. A judge hearing a S. 47 motion has no equivalent powers.

In the above case, Coronation and BBE entered into the contract in 2015, so the provisions of the former Construction Lien Act (“CLA”) still applied. Coronation brought a motion seeking to discharge BBE’s lien on the basis that they were out of time to do so. Under the CLA, a construction lien expires 45 days after the contract was completed. A contract is deemed to be completed when the price of completion, correction of a known defect or last supply is not more than the lesser of (a) 1% of the contract price; or (b) $1,000.

At the hearing, the motion judge found that the disputed factual issues could not be determined without making findings of credibility. Because a judge hearing a s. 47 motion does not have the enhanced fact-finding powers that motion judges hearing summary judgment do, a trial was required, and Coronation’s motion was accordingly dismissed.

The lien judge’s jurisdiction and the procedural tools and powers available to the court are important considerations to the type and nature of the motion being sought and heard. This case serves as a reminder that a s. 47 motion under the Act is not a suitable avenue of relief for cases where the trial judge has to make findings of fact and credibility.

Max H. Shin, Associate Lawyer

The Supreme Court of Canada in 2020 highlighted the need for being honest in dealing with contractual relations.  No more being Canadian and saying nothing when asked directly if a contract will be terminated, nope, you need to take a sip of your Tim’s and boldly answer yes, if you know that to be the case.

In Bhatnagar v. Cresco Labs Inc., 2023 ONCA 401 the Plaintiff asked the Court for Damages when the defendants clearly had not been honest in stating in whether a closing date would be met.  It is important to note that the Judge no finding the defendants had intentionally misled the plaintiffs about the closing date. It was the defendants’ failure to update important information about the closing date that it had previously provided which led to the finding that the defendants had breached their duty of honest performance.

The interesting clarification in this decision is that the plaintiff did not receive damages as it didn’t prove that the breach of the duty of honesty in contractual relations actually led to a loss.

While this decision still requires you to tell the truth in contractual relations, if your dishonesty doesn’t lead to damages, the Court isn’t going to award damages against you ….. yet.

Honesty is always the best policy and silence implying a position that is not true will come back to bite you in the wallet – at least for legal fees.

Inga B. Andriessen, Senior Lawyer