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What Different Kinds Of Damages Are There In Litigation?

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Author: Anika Helen - Paralegal
Edited By: Ryan Carson

In any kind of litigation, a person may be entitled to damages. When it comes to damages, it usually means monetary awards. When a person is injured or in a situation where they have been wronged in one way or another, they are entitled to different kinds of damages from the court. To simply put, damages are the amount of money that is claimed by a party or is ordered to be paid to a person, including a corporation, as compensation for loss or injuries.

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The main types of damages that are available to litigants

General (Non-Pecuniary) Damages
This is for damages for non-monetary losses suffered by a plaintiff. While these damages are not capable of exact quantification (e.g. pain and suffering, disfigurement, mental distress, loss of enjoyment of life, and loss of amenities), a party is still required to provide the necessary evidence upon which the court can award these damages. These damages are for past, present and future losses. Courts look at evidence that prove that a person has lost the ability to do certain things as a result of their injury or suffering.

Pecuniary Damages
These damages are also called special damages. These kinds of damages can be quantifiable in monetary loss. Pecuniary damages can result to any plaintiff in addition to non-pecuniary damages. For example, loss of income, medical expenses, cost of repairs, etc., can be categorized as such. If a person was in an accident, and they lost a limb as a result, they would be entitled to non-pecuniary as well as pecuniary damages.

Nominal Damages
Token damages awarded by the court to redress a violation of a legal right that the law deems necessary to protect even in the absence of actual harm or proof of harm or loss. Nominal damages are usually very small in amounts. Not often legal fees are covered and awards for damages are not high either. So, why would someone still file for nominal damages? It is mostly because they are usually seeking a court’s acknowledgement that their rights have been violated. These situations are usually because the plaintiff just want to establish grounds to take further legal action or they simply want to have a legal record that they were mistreated or wronged.

Compensatory (or Actual) Damages
Damages for the actual loss sustained by the plaintiff that will effectively place the plaintiff in the position that it would have occupied had the wrong not occurred or had the contract been performed. They are intended to compensate the plaintiff of a lawsuit with enough money to cover the actual amount of the injury or loss. Actual damages are awarded to replace the exact amount of loss as a result of an incident. For example, medical bills, rehabilitation expenses, physical therapy, lost wages, medical treatments, property lost or repaired, nursing home care, etc. To be entitled to actual damages, a plaintiff must be able to prove that they have suffered such losses and the monetary amount of the loss. It is the most common type of damage in litigation.

Punitive (or Exemplary) Damages
Non-compensatory damages to punish a defendant for its shockingly harsh, vindictive, reprehensible, or malicious behaviour. It is usually awarded in addition to compensatory damages. It is awarded by a judge when it is proven that the defendant willingly and intentionally inflected injury or harm on the plaintiff. Many provinces have a limit to how much can be awarded as punitive damages as the calculation can be difficult to predict.

Aggravated Damages
Damages in recognition of and to compensate a plaintiff for, suffering intangible damages such as mental distress, pain, anguish, grief, anxiety, humiliation, indignation, outrage as a result of the defendant’s actions. The damage award is intended to compensate for the aggravation of the injury by the defendant’s misbehaviour. It is not usually awarded to the defendant to please the plaintiff, but more because to make sure that there is some sort of punishment given to the defendant because of their behaviour. There are two basic requirements of punitive damages: (i) the defendant’s conduct must be reprehensible; and (ii) punitive damages must be rationally required to punish the offending party and to meet the objectives of retribution, deterrence, and denunciation.

Liquidated Damages
These are the damages agreed upon by parties entering into a contract, to be paid by a party who breached the contract to a non-breaching party. These are available in cases where damages may be hard to foresee. It must be a fair estimate of what the damages might be if there is a breach. It can be used when it is hard to prove the actual harm or loss caused by a breach. The liquidated damages should amount to the actual damages that results due to a breach. Liquidated damages are most common in construction contracts and serve as a useful risk management mechanism.

In many cases, one or more type of damages may be awarded as a result of multiple different kinds of losses and injuries. Understanding what kind of loss you have suffered is an important step before you decide to take the route of litigation. Consulting an attorney or a paralegal is advised before filing a claim, to make sure that you get the most out of what you are entitled to as a result of your loss and suffering.

Disclaimer

The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

Corollary Relief

Author: Stacey Staios - Articling Student
Edited By: Ryan Carson

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In addition to the equalization payments and division of property, divorcing couples may also bring a claim for corollary relief, which seeks orders from the court relating to financial support, custody and access. For married couples getting a divorce, one of the parties may initiate their spousal support by way of the Divorce Act.  However, there must have been a divorce granted in order to seek corollary relief. For unmarried cohabitants, they may initiate their spousal support action by way of Part 3 of the Family Law Act.

Three questions must be addressed when considering spousal support. The first is entitlement, the second is quantum (how much), and the third is duration (how long).

For unmarried couples, entitlement starts with the definition of ‘spouse’ found in section 29 of the Family Law Act and includes either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years, or are in a relationship of some permanence if they have a child together.1 The definition of cohabitation can be broken down into sections, namely, time requirements, aspects of cohabitation and intention, which all contribute to the meaning of cohabitation. The purpose of spousal support for unmarried cohabitants is set out in section 33(8) of the Family Law Act and includes;

           (a) To recognize the spouse’s contribution to the relationship and the economic consequences                  of the relationship for the spouse,
           (b) To share the economic burden of child support equally,
           (c) To assist the spouse in becoming financially independent, and
           (d) To relieve financial hardship.2

For married couples seeking a divorce, section 15.2(4) of the Divorce Act sets out the factors taken into consideration when establishing entitlement to spousal support. Specifically, the length of the marriage, the functions performed by each spouse during cohabitation, and any order, agreement or arrangement relating to support of either spouse.3

Once entitlement is established, the next step is to determine quantum and duration. According to the Spousal Support Advisory Guidelines (SSAG) the length of marriage actually refers to the length of cohabitation, which includes periods of premarital cohabitation and ends with separation. Included in the Spousal Support Advisory Guidelines are several formulas that can be used to determine how much spousal support you may be entitled to, depending on whether you have children or not.

The ‘without child’ support formula is used where there are no dependant children. This amount usually yields monetary figures that are lower and shorter, which align with non-compensatory support, which are claims that generally arise from shorter marriages. This formula is based on the gross income difference between the spouses and the length of marriage. In terms of duration, this is simply calculated based upon the length of cohabitation. The general rule suggests that the payee spouse will get from ½ to 1 year for each year that they cohabited with the payor spouse. However, any relationship longer than 20 years suggests that the duration of the spousal support is indefinite, meaning that the range of duration is not specified.

In contrast, ‘with child’ formulas tend to result in higher amounts for a longer period of time, mirroring the compensatory model, which generally arise from longer marriages. As for the range of support the payee is entitled to, this may be based on individual factors in the marriage, such as the length of the relationship, the circumstances regarding the children and how dependant the spouse was. There are two tests to determine the duration of support using the ‘with child’ formula, the Length of Marriage Test, generally used for longer marriages and the Age of Children Test, generally used for shorter marriages. The test to be used will be the option that is most advantageous to the payee.

Support orders are not always indefinite. There are circumstances that may allow for a variation of a spousal support order. For example, spousal support orders can be modified if one party re-marries, the payee or payor gets a new job, or the children are no longer dependant. Such variation orders may apply for both quantum and duration and may be brought by application when there has been a change in circumstances with either party. In comparison, an application may be brought for a review order, which are temporary and are intended to set spousal support at a certain amount and re-visit the quantum and duration at a later date. A review order may be used if you know that dependent children will be finishing high school on a certain date or if you know that the payee spouse will be attending school that will give them access to a good job. The difference between a review order and a variation order is that under the review order, there does not have to be a change in circumstances in order to apply for review.

Disclaimer

The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

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Ask A Lawyer!

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Recently, Ryan was able to sit down (virtually) with Matt McKeever, a Real Estate Investor and Entrepreneur to answer questions that viewers, like you, had about the real estate market and incorporating a real estate business.

                     Check out the information packed videos below!

Canadian Real Estate Lawyer Advice For First Time Buyers

Should I Incorporate My Real Estate Business? | Ask A Real Estate Lawyer

Is Wholesaling Real Estate In Canada Legal? 

If you enjoy these videos, let us know! We will continue to produce informative content to help you in any way we can.

Carson Law Office

Have a question for or want to know more about Matt Mckeever?

Instagram: http://www.instagram.com/mattmckeever85 Twitter: https://twitter.com/mattmckeever85 Business Inquires: mattmckeeverbusiness@gmail.com ►SUBSCRIBE: https://www.youtube.com/channel/UCdRtqnqBSq4GY7DGiYICu5g?sub_confirmation=1

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Section 718.1 of the Criminal Code

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Author: Anika Helen - Paralegal Edited By: Ryan Carson

The purpose of proportionality is based on fairness and just. Proportionality is imperative when it comes to sentencing a person who has been convicted of a crime. It is important to prevent unjust punishment for crimes that can be dealt with rehabilitation or other means of help.

According to the Criminal Code, Section 718.1 states that fundamental principle that the sentence must be proportionate to gravity of offence and degree of responsibility of offender.

Proportionality is the governing principle when it comes to sentencing. The sentence should not be greater than the offender’s moral liability. This is important because it ensures that there is justice for the offender. Every case is different and has its own set of facts and specific situation that need to be considered during the sentencing process. Proposing sentence and deciding on a sentence is not easy for anyone, but it should be done with careful consideration as it can change someone’s entire life. In provincial court matters, there are many offenders that come in everyday for petty crimes and receive sentences that affect their lives to a greater extent than we think. A sentence should be fair and just so that the offender can learn from it and not have their lives destroyed by a mistake. And sometimes, that is all it is. A mistake. Sometimes, people make mistakes and pay a higher price for it than they should.

Section 718.2 states – “A court that imposes a sentence shall also take into consideration the following principles:

  • A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and without limiting the generality of the foregoing,

    • Evidence that offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, or

    • Evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim shall be deemed to be aggravating circumstances;

  • A sentence should similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

  • Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

  • An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

  • All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”

It comes down to the concept of Restorative Justice. It is a recent concept in our justice system that puts emphasis on dealing with the wrong done to a person and community. The purpose of this is to shift the focus from an offender to helping and healing victims of the offender. Programs exist to repair relationships with the community. It involves the voluntarily participation of the victim, the offender and the members of the community to have discussions. The purpose is to talk, fix the damage and restore the relationships in the community to prevent further crimes from happening. The key is for the offender to accept and acknowledge responsibility for the crime committed and the harm done to the victim. Options like group conferencing, reconciliation panels, healing circles and victim-offender mediation are available these days to help the community and the people in it.

It is important to understand this section of the Criminal Code because sentencing is a huge part of the justice system. While it is imperative that offenders get proper punishments for what they have done, it is also important that sentencing should be proportionate to the level of crime committed. Sometimes, lives can be healed and changed with a bit of consideration and sympathy. New and young offenders can learn from their mistakes without having to give up on their lives.

Disclaimer

The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

Disability Accommodation in the Workplace

Author: Stacey Staios - Articling Student
Edited By: Ryan Carson

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Employers in Ontario have a duty to accommodate employees in regards to any protected grounds covered under human rights legislation. Accommodation is a term used to describe the duties of an employer to give equal access and opportunity to individuals who are protected under the Ontario Human Rights Code. Although there are many protected grounds, disability will specifically be addressed in this article.

Disability covers quite a broad range of conditions, which include but are not limited to, physical, mental, developmental, hearing or vision impairments and learning disabilities. These may be visible or invisible and may have been present from birth, caused by an accident or developed over time.1

According to the Government of Ontario, roughly 15.5% of Ontario’s population has a disability.2 The Accessibility for Ontarians with Disabilities Act (AODA) was introduced in 2005 to improve accessibility standards for Ontarians with physical and mental disabilities while making accessibility a regular part of finding, hiring and supporting employees with disabilities. The AODA is made up of five standards, and includes requirements that organizations must meet, which are specific to the organization’s type and size. These five standards include information and communications, employment, transportation, design of public spaces and customer service.3 These standards require organizations to create and implement policies and practices that identify and remove barriers that people with disabilities may face, specifically in the workplace.

Employers have a duty to accommodate the needs of individuals with disabilities to the point of undue hardship to ensure that an employee has equal access to any opportunities and benefits available. This duty to accommodate places puts onus on the employer to remove any barriers an employee may face when trying to access such opportunities and benefits. This standard requires an employer to take every measure to provide the accommodation without causing undue hardship to the business. Otherwise, the employer must demonstrate that they are unable to reasonably accommodate the employee without causing such undue hardship, which means they must provide an employee with the requested accommodation unless it would cause serious hardship to the company. The Ontario Human Rights Code sets out three considerations when assessing whether an accommodation would cause undue hardship, which include cost, outside sources of funding and health and safety requirements.4 No other consideration may be considered when assessing undue hardship, such as business inconvenience, employee morale or third-party preference.5

For example, if an employee requests an accessible washroom, it is not enough for the employer to claim undue hardship just because it will add additional costs. For an employer to claim undue hardship in this case, they would have to prove that providing the accommodation would be so extreme that it would interfere with the operations of the business. In certain cases, providing an accommodation will not add any additional costs. Often, the accommodation only requires policy changes and flexible rules, which may cause an inconvenience but will not be a factor in considering undue hardship.

By removing the barriers that individuals with disabilities face in the workforce, the AODA intends to maximize both the inclusivity of our society and the value that each employee contributes to the economy. An inclusive workplace is one where everyone is treated with respect and becomes a place of equal opportunity.

Disclaimer

The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

References

1 Accessibility for Ontarians with Disabilities Act 2005
2 Government of Ontario Handbook for Accessible Employment
3 Accessibility for Ontarians with Disabilities Act 2005
4 Ontario Human Rights Commission
5 Ontario Human Rights Commission
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Common Summary Conviction Offences

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Author: Anika Helen - Paralegal
Edited By: Ryan Carson

“Summary” means in a quick and simple manner. Summary conviction offences are considered less serious than indictable offences because they are punishable by shorter prison sentences and smaller fees. The penalty for these offences is found in s.787(1) of the Criminal Code, which provides a maximum punishment of a $5,000 fine or a term of imprisonment of not more than two years less a day or both.

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It is extremely important to read the Code in detail for each offence. For every offence, the Code has listed what the Crown has to prove beyond a reasonable doubt. As with all offences, the Crown must prove both actus reus and mens rea of the offence beyond a reasonable doubt. That is, the act or the omission of the offence must be proven as well as the criminal intent. The accused must have had the mental capacity and the intent to commit the offence. The offence cannot have been the result of an accident. Therefore, the usual defence in criminal cases is a lack of intent. However, the intent may be satisfied by the intent to commit the act rather than by the intent to do something wrong.

What are the most common types of summary conviction offences?

Causing a Disturbance – conduct that disturbs public peace and order in or near a public place is an offence according to the Code. The conduct may be fighting, shouting, singing, using insulting or obscene language, loitering, being drunk, discharging firearms, or impending harassing or molesting other persons. To make out a case, the Crown must prove that the accused was not in a dwelling home and was engaging in one of the listed acts. The Crown also must prove that the accused was in or near a public place and someone was actually disturbed by the acts listed.

Trespassing at Night – Loitering or “prowling” on another person’s property without permission and without an excuse. Loitering means wandering with no precise definition and prowling includes a notion of evil. A prowler does not act causally, but with a purpose. In this case, the Crown does not need to prove that the accused intended to commit a specific evil act, but only that the accused person was loitering and prowling intentionally on another person’s property without an excuse. This offence is charged along with another offence, such as theft under $5,000 or possession of a break-in instrument. For example, a person might be charged with trespassing at night when the person entered a vehicle in a driveway to steal property from the vehicle.

Taking a Motor Vehicle Without Consent – “Joy riding” is the common term for this offence. This requires that the motor vehicle be taken without the owner’s consent. A person can be charged with this offence even if they are just a passenger in the vehicle that has been taken without consent. Possessing a stolen vehicle is an offence regardless of whether a person stole it or not. It is assumed that if a person has possession of a stolen vehicle, that it is the person themselves who stole the vehicle. The only defence available in a scenario where someone has possession of a stolen vehicle is that they had no idea that the vehicle was stolen.

Fraudulently obtaining food, beverage or accommodation – s. 364(1) of the Code states that every one who fraudulently obtains food, a beverage or accommodation at any place that is in the business of providing those things is guilty of an offence punishable on summary conviction. A common example of this is, not paying a restaurant bill. For this offence, the Crown must prove that the person intended not to pay for food, beverage or accommodation stolen.

Transportation Fraud – it is a criminal offence to obtain transportation in a fraudulent way. This means that any free or discounted ride obtained by intentional deceit or falsehood can lead to these charges. This offence carries a penalty of up to six months in jail and a criminal record. An example of this offence includes not paying for public transportation, such as TTC or Go Transit. However, the fraud must be intentional. A mistake can be forgiven by the court unless the person intended not to pay.

Attempts and Accessories After the Fact, Summary Conviction – anyone who attempts to commit a summary conviction offence or is an accessory after the fact to such an offence is also guilty of a summary conviction offence. An accessory after the fact is defined in s.23(1) as one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling them to escape. A common example of this would be helping someone to hide to get away after they have robbed a bank or stolen a vehicle.

When charged with a summary conviction offence, it is best to reach out to a criminal lawyer or a paralegal who has experience in the field. Every situation has different circumstances. It is ideal to get help from someone who is experienced rather than defending one’s self alone. Sometimes, a mistake or an unfortunate situation can lead to these charges where there was no intent. A legal representative would be able to defend a person in those circumstances, so that the person’s record does not get tainted because of a mistake or an act they did not commit.

Disclaimer

The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

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Determining Which Business Venture is Right for You!

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Author: Sarah Nadon – Law Student
Edited By: Ryan Carson

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Partnership agreements may arise informally through the shake of a hand; however, rarely is that the best course to follow when creating a partnership. Partnerships are very much like sole proprietorships however they involve two or more people.

Most partnerships, either big or small, operate subject to an agreement among the partners that lays out specific rights and obligations of every party, as well as provisions for running the company, both day to day and in the event that someone dies, or the partnership is dissolved. This article will examine the pros and cons of joint ventures and shareholders agreements as well as common mistakes that occur when entering into a business venture.

Shareholders agreement

A shareholder’s agreement is an agreement between the shareholders of an existing corporation. The agreement is used to assure that owners’ rights are protected. Shareholders agreements are very fact specific and are tailored to the unique circumstances of the parties.1

This type of agreement typically deals with two basic areas:
      • Control and management of the corporation; and
      • Termination of the relationship of the shareholder, whether by transfer of the shares to third          parties, a buy-out of the shares by a different shareholder or by liquidation of the corporation.2

In a shareholder’s agreement each party is responsible for the actions of the other shareholders. Shareholders share risk, costs and profits with one another.
Joint Venture

A joint venture involves two or more businesses or individuals combining their resources and expertise to achieve a shared goal. Joint ventures are usually undertaken by previously established businesses. Joint ventures are relatively new meaning unlike corporations, they are the least regulated. Much like partnerships, joint ventures do involve a fiduciary duty.3

Joint ventures are typically created by express agreement, which will define the rights, obligations and prospective liability of each participant in the joint venture.4 Unlike a shareholder’s agreement, each party is responsible for the debts they acquire but split the profits according to the agreement.

The main difference between a joint venture and a shareholder agreement is whether the agreement is between one company or several, as a shareholder’s agreement cannot be created with several different companies.
How to decide between a joint venture and a corporation

Corporations are another form of a business entity structure made available to the public. A corporation is when a company’s owners operate as a single business entity and is formed by filing articles of incorporation, while a joint venture is a partnership between two or more businesses that want to work together towards a common goal.5 A corporation has a separate legal entity from its shareholders meaning it has the same rights as an individual. In Canada, corporations have all the legal rights of a person therefore they are eligible for loans, can carry on business, sue or be sued. Corporations offer limited liability and is one of the most common business structures in Canada.

Since joint ventures have no statute to govern them, they are strictly governed by the contract made between the parties. Joint ventures allow flexibility for the parties and are not considered to be a taxpayer under Canadian tax legislation while corporations are taxed by both the Ontario and federal income taxes.6

When choosing a business entity, one should consider the legal liability, the tax implications, the cost of formation, the ongoing administration and the flexibility they desire. In addition, how the entity is governed may also be an important consideration.

What kind of questions should be answered before talking to a lawyer?

Before speaking to a lawyer, one will want to have an idea of which type of agreement they would like drafted. Next, they should know who the parties to the agreement will be, when the agreement will end, if ever. The parties to the agreement should also know what the objective of the agreement is in order to help the lawyer draft a proper contract.

What to include in an agreement?

Shareholders agreement:

  • The right to remove directors

  • Terms to protect minority share holders

  • Restrictions on how and when someone can dispose of their shares

  • Limitations on what actions a director can take

  • A business plan to assure that all shareholders are on the same page

  • How to resolve a shareholder dispute

  • The right to first refusal clause

Joint Venture:

  • Type of joint venture

  • Benefits and risks

  • Financial contribution each party will make

  • Objective of the joint venture

  • Ownership of the intellectual property created by the joint venture

  • How liabilities, profits and losses are shared

Common mistakes

  • If in a limited partnership, limited partners are not allowed to take an active role in management of the partnership, as it exposes the limited partners to the same level of liability as the general partner

  • Not choosing the right business entity

  • Starting a venture without a business entity

  • Not filing the proper documentation for the business entity

  • Excluding important clauses from the business contract

  • Inadequate capitalization

  • Ignoring intellectual property and getting sued for infringement

  • Objectives of a joint venture are not 100% clear and communicated with everyone

Disclaimer

The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

References

1 The Editorial Staff of LexisNexis Canada in co-operation with The Institute of Chartered Secretaries and Administrators in Canada, Canadian Corporate Secretary’s Guide (LexisNexis Canada, 2003) (loose-leaf updated 2020), (QL)
2 Ibid.
3 Meinhard v. Salmon, 62 A.L.R. 1 at 4-5 (N.Y.C.A., 1928)
4 Chitel v. Bank of Montreal, [2002] O.J. No. 2170 (Ont. S.C.J.
5 Canada Business Corporations Act, RSC 1985, c C-44, Part II.
6 Neil Hazan, “Joint Ventures in Canada: Overview” Joint Ventures Law Global Guide, August 1 2017.

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Who is a Litigation Guardian and What Are Their Duties?

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Author: Anika Helen - Paralegal
Edited By: Ryan Carson

Litigation is a process that may not be known to many people. It is tiring, complicated and time consuming, and not to mention, it takes money to go into litigation. It can be especially difficult when a claim involves a party with minors and the disabled. There are three types of parties under disability according to r.1.02(1) of the Rules of Small Claims Court.

1. Persons under the age of 18 years old are considered to be minors.
2. Mentally incapable in respect of an issue in the action, whether the person or party has a guardian     or not; The term mentally incapable is defined within the meaning of s. 6 (incapacity to manage     property) or s.45 (incapacity for personal care) of the Substitute Decisions Act, 1992.
3. An Absentee: The term absentee is defined in s. 1 of the Absentees Act as a person who, having     had his or her usual place of residence in Ontario, has disappeared, whose whereabouts is     unknown, and as to whom there is no knowledge as to whether he or she is alive or dead.

Rule 4 of the rules governs claims by or against a person under disability shall be commenced or continued by a Litigation Guardian (r. 4.01(1)). Though a minor can begin an action not exceeding the amount of $500, an action against a person under disability must be defended by the defendant’s litigation guardian, according to r.4.02(1)).

So, what is a litigation guardian? A litigation guardian is an officer of the court who represents the person under disability in a limited sense. A litigation guardian is not a party to the action and is not master of the suit. There are several duties of a litigation guardian.

A litigation guardian must diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests. A litigation guardian is allowed to do anything in a proceeding that the party would usually be required or authorized to do so. If a litigation guardian consents to any departure from ordinary course of practice, they must need approval of the court.

Any money payable to a person under disability as a result of an order or settlement must be paid into court, unless a Judge states otherwise. The litigation guardian is not entitled to receive any compensation, and is liable to account for any money they receive. A litigation guardian can have no interest in the party’s cause of action or the outcomes of the action.

A litigation guardian is required to not only protect the person under disability and their interests but also protect other parties and the court. They are required to be competent so that they are able to take steps in the proceedings, instruct the legal representative, responsible for costs, and to ensure that judgments are respected and performed. A litigation guardian is also expected to protect the court though efforts to prevent an abuse of the court’s process by or against a person under disability.

Issues related to disability and the need for a litigation guardian arise commonly when minors sue as plaintiffs in proceedings. The most common cause of action is usually personal injury cases. In situations like these, the parents or other relatives of the minor tends to act as the litigation guardian. However, there are times when there could be conflict of interest; where the parents or the relatives are involved in the incident that caused the claim to begin with. For example, in a car collision where a child was injured and a parent was driving the car. The child can sue the other driver as well as their own parent who was driving the car for negligence. In this case, the parent who was driving the car would not be allowed to act as a litigation guardian. A paralegal or a lawyer would also not be allowed to represent both parents and the child unless a waiver is signed by both the parents as well as the child that they want the same legal representative. And often times, that is not the case.

To act as a litigation guardian in an action, a person must consent to it. This can be done by filling out Form 4A of the Small Claims Court. Who may be a litigation guardian? Generally, any person who is not under disability may act as litigation guardian, subject to r.4.03(2) and r. 4.03(1). In some unfortunate cases when there are no available persons to act as a litigation guardian for a child, a Children’s Lawyer shall be the litigation guardian.

When a minor or disabled is being sued and they have no litigation guardian, the court may, after notifying the proposed guardian, appoint as litigation guardian any person who has no interest in the action contrary to that of the defendant. If an action has been brought against a defendant under disability and has not been defended by a litigation guardian, the court may set aside the noting of default judgment against the defendant on such terms that are just and fair and also set aside any step taken to enforce the judgment.

It is important to find the right litigation guardian that has the best interest in mind for the child. Failure to appoint a litigation guardian is an irregularity but it does not invalidate a proceeding. This can be fixed by appointing one. If an action has been commenced and it appears that there is no litigation guardian for a minor in the action, then the action should not proceed further until one has been appointed.

Where an action is commenced without a litigation guardian, the paralegal or the lawyer commencing the action may be personally liable to pay the defendant’s costs even if the legal representative was unaware of the legal disability of the plaintiff. However, legal representatives who acted with a bona fide belief and were not negligent are not awarded costs by the court.

Removal of Litigation Guardian

There are three scenarios where a litigation guardian may be removed from an action:

1. When a minor reaches the age of majority. In other words, when the child turns 18 years of age. 2. When a party is no longer under disability. For example, someone sick gets better and are able to     make their own educated decisions.
3. And finally, when a court determines that the litigation guardian is not acting in the best interest     of the child/disabled. For example, there can be a conflict of interest. In this scenario, the court     can appoint a Public Guardian and Trustee or a Children’s Lawyer.

Litigation can be confusing and it can be hard to understand the rules and regulations of a proceeding. It’s always helpful to consult a legal representative so that anyone commencing an action can be fully informed about what their options are and the next steps. When it comes to minors and the disabled, it is even more important to make the right decision to make sure they are protected and represented the way they deserve.

What Is Wrongful Dismissal?

Author: Stacey Staios - Articling Student
Edited By: Ryan Carson

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Wrongful dismissal is a commonly misunderstood term. In Ontario, an employer is allowed to terminate an employee on a without cause basis, so long as the employer’s decision to terminate the employment relationship is not discriminatory and the employer provides advance notice to the employee or payment in lieu of such notice, which is also known as termination pay. An employee is wrongfully dismissed when an employer terminates their employment without providing the proper notice or termination pay in lieu of such notice.

Under the Employment Standards Act, 2000 (“ESA”), advance notice is required for every employee who has been continuously employed for at least three months.1 The minimum amount of statutory notice an employer must to provide an employee with depends on the employee’s length of service and can be found in the chart below.

During the applicable statutory notice period, the employer must fulfil specific obligations. An employer may not reduce the employee’s wages or alter the terms or conditions of their employment. The employer must provide benefit continuation throughout the statutory notice period and pay the employee wages that they are entitled to, which cannot be less than the employee’s regular wage for a regular work week.2

According to section 61(1) of the ESA, an employer may terminate the employee’s employment without notice if the employer pays the employee a lump sum amount that is equal to the amount the employee would have been entitled to receive under section 60 of the ESA had notice been given in accordance with that section and if the employer agrees to contribute to the employees benefit plan during that time.

Wrongful dismissal occurs when an employer terminates an employee without providing the proper amount of notice or pay in lieu thereof. In some circumstances, employees may be entitled to common law reasonable notice. Common law reasonable notice is determined by looking at factors such as the character of the employment, the length of service, the age of the employee and the availability of similar employment. Some employees may have an employment contract that includes a termination clause which removes their right to common law severance and limits their entitlements upon termination to those prescribed in the ESA.

In the event that an employee is terminated, section 2 of the Employment Standards Act sets out a list of employees who are not entitled to notice of termination or termination pay.3 Employers may want to claim that there was just cause for the dismissal to avoid providing notice or termination pay to the employee.

However, if an employee believes that their termination was incorrectly labelled as being for cause, they may bring a claim to prove that their dismissal was not justified. In this case, the terminated employee may file such a claim against their employer seeking damages, which is also known as a wrongful dismissal action.

Period of Employment Notice Required

Less than 1 year 1 week
1 year but less than 3 years 2 weeks
3 years but less than 4 years 3 weeks
4 years but less than 5 years 4 weeks
5 years but less than 6 years 5 weeks
6 years but less than 7 years 6 weeks
7 years but less than 8 years 7 weeks
8 years or more 8 weeks

Disclaimer

The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

References

1Employment Standards Act 2000, s.54(a)
2Employment Standards Act 2000, s.60(1)
3Employment Standards Act 2000, s.2 .

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Should You Consider A Cohabitation Agreement?

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Author: Stacey Staios - Articling Student
Edited By: Ryan Carson

A cohabitation agreement is an agreement signed by two unmarried individuals who are living together or intend to live together in the future. When a couple decides to live together, a cohabitation agreement can clearly set out the rights and obligations of each party, either in the event of a breakdown of the relationship or upon the passing of one of the partners.
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There are many benefits to entering into a cohabitation agreement, regardless of whether the parties intend to marry or remain in a common law relationship. For the purpose of support obligations, common law couples are defined in Ontario as couples who have lived together continuously for no less than three years, or one year if they are in a relationship of some permanence and have a child together.1
When it comes to the division of property, there is a distinction between the rights available to common law couples and married couples. If one party in a common law relationship passes away without a will, the surviving common law partner does not have an automatic right to their spouse’s property under the Family Law Act like a married couple would, regardless of the length of their relationship or cohabitation. Rather, they must have the courts determine their share via a claim in equity under a constructive trust, which can be overwhelming, costly and time consuming.
Couples who decide to enter into a cohabitation agreement can ‘bypass’ these legal limitations and set out specifically what property they wish to leave behind to the surviving common law spouse. In the event of a breakdown of the relationship, the parties can, using a cohabitation agreement, contract out of any right or obligation that would otherwise take place without an agreement, including spousal support and the division of property.
For some, entering into a cohabitation agreement under section 53(1) of the Family Law Act may be advantageous, particularly if there is a significant disparity in the parties income, assets or debts. Such agreements can keep these assets separate and have the couple remain financially independent. In the event that the couple decides to marry at a later date, a cohabitation agreement can transition into a marriage contract under section 53(2) of the Family Law Act. 2
When it comes to rights and obligations that both parties wish to contract out of using a cohabitation agreement, section 56 of the Family Law Act is applicable. This section states that a domestic contract, relating to the custody of or access to the child may be set aside and disregarded by the court if, in the opinion of the court, the contract is not in the best interest of the child.3 Further, section 56(4) of the Act states that a domestic contract may also be set aside if (a) a party failed to disclose any significant assets, debts or liabilities, or (b) if a party did not understand the nature or consequence of the domestic contract. Therefore, contingent on the parties satisfying these requirements, their domestic contract will stand in court.

Given that there is no statutory right to the division of property among common law couples, a cohabitation agreement may be entered into by those who wish to remain unmarried and have a division of property regime. It is important to have a qualified and experienced lawyer draft an agreement of this nature, as there are many factors and variables that can affect its validity. Whether you are inquiring about a cohabitation agreement, require one to be drafted, or need it to be reviewed by a lawyer, our team is here to help. At Carson Law our lawyers have many years of experience helping families in Burlington, Ontario and its surrounding areas create these domestic contracts in a cost effective and practical way.

Disclaimer

The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

References

1 Ontario Family Law Act, s.29.
2 Ontario Family Law Act, s.53(2)
3Ontario Family Law Act, s.56 .

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Maternity Leave Announcement

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Congratulations to our Real Estate Manager, Julie Saliba!

Julie will be on maternity leave from May 1, 2020 until November 1, 2021.

All real estate needs will still be completed in a timely manner and within the high standards that Carson Law demonstrates. If you have any questions, please feel free to contact us.

GENERAL INQUIRIES RYAN CARSON

info@carsonlaw.ca ryan@carsonlaw.ca

905.336.8940 905.336.8940 ext.1001

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Rent Assistance Program for Small Business Tenants

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On April 24, 2020, the Ontario Government announced rental assistance for small businesses during COVID-19. The Canada Emergency Commercial Rent Assistance Program (CECRA), has been developed for small business tenants and landlords to share the costs of rent.

For eligible businesses, both tenants and landlords will be asked to pay 25 per cent of the before profit costs, for April, May and June with the provincial and federal government paying the remaining 50 per cent.3

An eligible small business tenant is one that:
• Pays monthly rent not exceeding $50,000 in gross rent payments; and is,3
• A non-essential small business that has temporarily closed, or who is experiencing a 70 per cent drop in pre-COVID-19 revenues (determined by comparing revenues in April, May or June to the same month in 2019 or alternatively compared to average revenues for January and February 2020).3

The property owner must meet the following requirements:
• You own property that generates rental revenue from commercial real property located in Canada.1 • You are the property owner of the commercial real property where the impacted small business tenants are located.1
• You have a mortgage loan secured by the commercial real property, occupied by one or more small business tenants.*1
• You have entered or will enter into a rent reduction agreement for the period of April, May, and June 2020, that will reduce impacted small business tenant’s rent by at least 75%.1
• Your rent reduction agreement with impacted tenants includes a moratorium on eviction for the period of April, May and June 2020.1
• You have declared rental income on your tax return (personal or corporate) for tax years 2018 and/or 2019.1

*For those property owners who do not have a mortgage, an alternative mechanism will be implemented. Further information will be outlined in the near future.


All parties must also agree to enter into a rent forgiveness agreement in order to participate in the Canada Emergency Commercial Rent Assistance Program. This agreement will simply state that the landlord agrees to reduce the tenant’s rent by at least 75 per cent for the month of April, May and June; and the landlord agrees to not evict the tenant during those three months.

This forgivable loan program will be paid out directly to the mortgage lender of the qualifying commercial property owner by the Canada Mortgage and Housing Corporation. It is expected that CECRA will be operational by mid-May and be available until September 30, 2020. Support would be retroactive to April 1, 2020 covering April, May and June 2020. The federal government will be sharing more details of this program in the near future.2

Disclaimer

The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

References

1Canada Mortgage and Housing Corporation. (2020, May 1). Canada Emergency Commercial Rent Assistance (CECRA) for small businesses. Retrieved May 4, 2020, from https://www.cmhc-schl.gc.ca/en/finance-and-investing/covid19-cecra-small-business. 2Moher, J. (2020, April 27). Canada Emergency Commercial Rent Assistance Program for Small Businesses. Retrieved May 4, 2020, from https://www.dalelessmann.com/news/blog/canada-emergency-commercial-rent-assistance-program-small-businesses?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration. 3Office of the Premier. (2020, April 24). Ontario-Canada Emergency Commercial Rent Assistance Program. Retrieved May 4, 2020, from https://news.ontario.ca/opo/en/2020/04/ontario-canada-emergency-commercial-rent-assistance-program.html.

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Since COVID-19, Where Have Home Prices Increased and Decreased Across the GTA?

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““Everyday is an opportunity disguised as a challenge. No doubt we are all in the same storm but definitely in different boats so let’s be kind to one another. As these statistics show, real estate values on average are holding strong and in almost all GTA cities have increased from last year! This is still a great time to sell from a price standpoint if you were thinking of listing pre-COVID-19. The sky is not falling on the real estate market. First, take care of yourself, family, and friends. Second, if you need help let us or someone know as we are all in this together. Third, there is great opportunity out there, great listings that need buyers, and if I was looking personally or as an investor there is great inventory without the competition of multi buyers. Finally, stay safe and make sure to work with a realtor using all the necessary precautions when showing you homes.””
— Ryan Carson
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Alternative Dispute Resolution during COVID-19

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With the Ontario Court of Justice limiting access to courthouses to help prevent the spread of COVID-19, there are still ways to settle a dispute without going to court. This method for resolving a legal dispute outside of the courts is called an Alternative Dispute Resolution (ADR). With the current state of affairs, this may be an appealing option to help parties settle their differences, rather than to wait for the courts to open and be backlogged with cases.

Below are some of the benefits of using the most common forms of Alternative Dispute Resolution, which are: Collaborative Law, Mediation and Arbitration.

Collaborative Law
• Attorney assistance – each participant has their own lawyer 2
• Faster agreements – many cases take 4-6 months2
• Client control – clients decide the terms of their own agreements with help from their Collaborative attorneys. A final agreement will not be reached until both parties agree to it.2
• Maintains privacy – Participants of Collaborative law cases are able to decide what goes into the documents, which will become public record.2
• Preservation of relationships – Collaborative Law helps to focus on communicating with each other instead of attacking.2

Mediation
• A Mediator is an unbiased, impartial person who helps each party in their negotiations to help find mutually acceptable, practical solutions.5
• Meetings can be scheduled, depending on each parties’ availability, to occur within days.1
• Flexible formatting such as regular or on-demand follow up.1

Arbitration
• Decision of an arbitrator is legally binding, as if it were made by a judge.4
• A speedy and customized process tailored to the dispute issue.4
• Private proceeding for reputation or business confidentiality .4
• Can adhere to the current social distancing requirements.4

Alternative Dispute Resolutions are used in a way that is appropriate and best suited for both parties. There are other forms of ADR and the use of a specific method will depend on the nature of that particular dispute.3
For more information on the benefits of Alternative Dispute Resolutions, please visit any one of the below organizations within Canada that specialize in ADR.

ADR Institute of Canada (ADRIC)
Intellectual Property Institute of Canada (IPIC)
IP Neutrals of Canada

Disclaimer

The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

References

1Birnberg, G. (2020, March). The Business Case for Neutral Facilitation in the Days of the Coronavirus (COVID-19). Retrieved April 21, 2020, from https://www.mediate.com/articles/birnberg-neutral-covid.cfm 2Forest, C. (2019, February 20). Benefits of Collaborative Law: Win-Win Agreements. Retrieved April 20, 2020, from https://www.keepoutofcourt.com/benefits-of-collaborative-law/ 3Intellectual Property Office. (2018, September 25). Alternative dispute resolution. Retrieved April 21, 2020, from https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr04443.html 4Munro,, L. C. (2020, April 2). Arbitration COVID-19 Benefits: Lerners LLP London & Toronto. Retrieved April 21, 2020, from https://www.lerners.ca/lernx/arbitration-covid-19/ 5Waterous Holden Amey Hitchon LLP. (2019). Alternatives to Court – ADR. Retrieved April 21, 2020, from http://waterousholden.com/alternatives-to-court-adr/?gclid=Cj0KCQjws_r0BRCwARIsAMxfDRiTkhF4NAcKUaWz46-QOHXqMuK-N51HIuB38GVqssDdNW0hLl3BZcwaAro-EALw_wcB

Joint custody during COVID-19

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Currently, navigating different environments in and outside of the home has become something of an uncertainty and a bit of trial and error. An item that is up in air in terms of legality and having parents hesitating on decisions, is how to properly handle joint custody and the transferring of a child between homes during COVID-19.

The Ontario courts are telling us that children’s lives cannot be placed on hold without risking serious emotional harm and upset to the children. However, some parents may have to forgo time with their child if they are under self-isolation due to recent travel or exposure to COVID-191.
It’s all about what’s in the best interest for the child and providing love and support from both parents. In some cases, a parent’s behaviour may raise concern about parental judgement and that will need to be taken into consideration. This can include failing to comply with social distancing, or not taking responsible health precautions.2

Parents with a shared custody agreement can refer to the Ontario Superior Court’s recent case, Ribeiro v Wright, 2020 ONSC 1829 (CanLII) for guidance on how to navigate this new normal.

In summary:

• The court says existing parenting arrangements and schedules should continue with modifications to ensure COVID-19 precautions, such as physical distancing, are being followed.2
• In some cases, the court says parents may have to forgo their time with the child if they have to self-isolate because they’ve become ill, they’ve travelled abroad, or they’ve been exposed to someone with the illness.2
• The Ontario Superior Court judge says there should zero tolerance in the eyes of the court for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.2
• There may need to be changes to transportation, exchange locations, or any terms of supervision, according to the court.2
• In step-families, the court says parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount of time in a household – including children of former or new relationships.2
• For the sake of the child, all parties must find ways to maintain important parental relationships.2

There will be no easy answer, for every household is different, but the need for collaboration and to work on developing new custody arrangements could be the best option for both parties.

The province of Ontario has set up a free legal aid hotline for residents unsure of their obligations during COVID-19.

Toll-free: 1-800-668-8258
Greater Toronto Area: 1-416-979-1446

The Law Society of Ontario has also launched a hotline where you can be connected with a family lawyer who will provide 30 minutes of free legal advice.

Crisis Line: 416-947-5255
Toll Free: 1-855-947-5255 
www.findlegalhelp.ca

Disclaimer

The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.


References

1Loriggio, P. (2020, March 30). Parents should respect custody arrangements during COVID-19 pandemic: Ontario courts. Retrieved April 13, 2020, from https://globalnews.ca/news/6753749/custody-agreements-ontario-courts-covid-19/ 2 Ribeiro v Wright, 2020 ONSC 1829 (CanLII), , retrieved on 2020-04-13

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To Tenants and Landlords during COVID-19 ...

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With the current environment, tenants and landlords are in the same boat when it comes to rent. Tenants are worried about their inability to make rent; landlords are worried about their operating costs and many people from both parties find themselves unable to meet the obligations of their contracts. Currently, no new eviction orders will be issued until further notice and sheriff’s offices will postpone any scheduled enforcement of current eviction orders.3
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Tenants who are able to pay their rent must do so, to the best of their abilities. If not, an honest conversation between a landlord and tenant is often the best first step in dealing with this challenging problem. With this conversation, deferring payments is the most common approach at this moment. Looking into the future of lease agreements due to COVID-19, we can perhaps start to see ‘pandemic clauses’ become a standard feature of leases and agreements.1
In the meantime, here is a list of short-term solutions that landlords may consider:

• Basic Rent abatement or deferral.2
• Basic Rent suspension for defined periods i.e. 3-6 months or longer depending on the nature of the tenancy.2
• Basic Rent deferrals for a defined period and a corresponding increase of Basic Rent at a point in the future to make up for a Basic Rent deferral.2
• Either eliminating or reducing the obligation to pay Basic Rent and replacing it with the requirement to pay Percentage Rent for a defined period of time. A switch to paying Percentage Rent is similar to a "pay what you can" approach.2
• Less common, is abating or suspending both Basic Rent and Operating Costs. Typically, landlords like to recover at least their out of pocket expenses such as realty taxes, insurance, utilities still and maintenance costs.2
• Reduction or elimination of administrative fee and/or management fee component of operating cost charge.2
• Reduction or elimination of promotional and marketing fees.2
• Reduction of services offered and performed at the property to effect a reduction in operating costs to be charged to tenants during the COVID pandemic crisis.2
• Depending on the size of the property, number of tenants and nature of the tenancies in a given property, a landlord can consider a reduction of services provided to tenants during the state of emergency, which would potentially reduce operating costs.2
• If the landlord would rather that a particular tenant vacate its premises, then the landlord may consider building in an automatic termination or an option to terminate for the landlord.2
• Ensure that any concession you agree to clearly provides the following2:
        → insert a consideration clause;
        → clearly state when the concession expires;
        → the lease is otherwise in full force and effect and remains unamended;
        → time shall continue to remain of the essence;
        → the concession is not a waiver of any other clause in the lease;
        → the indemnifier signs the amendment, if applicable.

Assistance for Tenants

If you need help financially you can:
• contact your local service manager
• apply for COVID-19 emergency assistance
• access federal government programs

Assistance for Landlords

Landlords may wish to:
• talk to their municipality about help with property taxes and municipal service fees.
• inquire with their mortgage lender about mortgage payment deferrals
• investigate federal government programs

Disclaimer

The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

References

1Hinton, K., & Mckenzie, R. (2020, April 1). 5 tips for handling commercial leases and contracts during COVID-19 and beyond. Retrieved April 20, 2020, from https://www.bcbusiness.ca/5-tips-for-handling-commercial-leases-and-contracts-during-COVID-19-and-beyond. 2Lanteigne, J., & Rosen, S. D. (2020, March 26). COVID-19 (coronavirus) advisory: Commercial landlord survival guide. Retrieved April 19, 2020, from https://gowlingwlg.com/en/insights-resources/articles/2020/covid-19-commercial-landlord-survival-guide/ 3Ministry of Municipal Affairs and Housing. (2020, March 28). Renting: changes during COVID-19 (coronavirus). Retrieved April 19, 2020, from https://www.ontario.ca/page/renting-changes-during-covid-19

What Employers Need To Know During COVID-19 - Part 4

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GST/HST payments and other tax exemptions with small businesses is something that is top-of-mind during COVID-19. The CRA has put in place measures which should help alleviate some of these stresses. The CRA will permit all businesses to defer payment until the end of June 2020 on any GST/HST payments or remittances that are owing on or after March 27, 2020 and before June 2020 with no interest to payments.3 The deadline to file has remained the same, however, the CRA won’t impose penalties on a return that is filed late as long as it’s filed by June 30, 2020.3

The deadlines to file certain categories of tax and information returns have been extended:

• Trusts having a taxation year ending on December 31, 2019, may defer filing T3 returns until May 1, 2020.1

• Partnerships and their members may defer filing T5013 returns until May 1, 2020.1

• The deadline to file NR4 information returns has been extended to May 1, 2020.1

For more questions and answers, please take a look at the Deferral of GST/HST Tax Remittances.
In conjunction with the GST/HST exemptions, the Ontario government has also announced the following measures to help support small businesses:

• Provincial tax deferrals on the Employer Health Tax (EHT), Tobacco Tax, Fuel Tax, Beer Tax and Mining Tax and other provincially-administered taxes until August 31, 2020 with no interest or penalty.2

• The Employer Health Tax (EHT) has temporarily increased, until January 1, 2021, from $490,000 to $1 million
     →Employers who have to pay EHT have employees who physically report for work at your          permanent establishment in Ontario; or have employees who are attached to your permanent          establishment in Ontario; or have employees who do not report to work directly at your          permanent establishment but are paid through your Ontario permanent establishment; and          have Ontario payroll in excess of your allowable exemption amount.6

• Property tax reassessments being conducted this year for the 2021 tax year have been postponed.2

• Provincial Land Tax Payments are deferred from their next due date for 90 days without interest or penalty.2
For more information on the Employer Health Tax (EHT) or a full list of measures the Ontario government is taking.

Disclaimer

The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

References

1Brown, K., Meighen, C., Nearing, R. W., Purkey, F., & Juneja R. (2020, April 13). Tax Measures Under Canada’s COVID-19 Economic Response Plan. Retrieved April 15, 2020, from https://www.mccarthy.ca/en/insights/blogs/mccarthy-tetrault-tax-perspectives/tax-measures-under-canadas-covid-19-economic-reponse-plan 2Business, C. F. O. I. (2020, April 10). Canadian Federation Of Independent Business. Retrieved April 14, 2020, from https://www.cfib-fcei.ca/en/advocacy/employment-and-labour/ontario-covid-19-relief-measures-your-business  3Canada Revenue Agency. (2020, March 31). Government of Canada. Retrieved April 15, 2020, from https://www.canada.ca/en/revenue-agency/campaigns/covid-19-update/frequently-asked-questions-gst-hst.html  4Department of Finance Canada. (2020, April 11). Archived – Additional Details on the Emergency Wage Subsidy. Retrieved April 14, 2020, from https://www.canada.ca/en/department-finance/news/2020/04/additional-details-on-the-canada-emergency-wage-subsidy.html  5Department of Finance Canada. (2020, April 11). Government provides further flexibility for employers to access the Canada Emergency Wage Subsidy. Retrieved April 13, 2020, from https://www.canada.ca/en/department-finance/news/2020/04/government-provides-further-flexibility-for-employers-to-access-the-canada-emergency-wage-subsidy.html  6Ministry of Finance. (2020, April 7). Employer Health Tax. Retrieved April 15, 2020, from https://www.fin.gov.on.ca/en/tax/eht/index.html  7Ministry of Labour, Training and Skills Development. (2020, March 26). UPDATED: Ontario Enabling Financial Relief for Businesses. Retrieved April 13, 2020, from https://news.ontario.ca/mol/en/2020/03/ontario-enabling-financial-relief-for-businesses-1.html  8Osler. (2020, March 19). COVID-19 Quick-Reference Considerations for Employers. Retrieved April 14, 2020, from https://www.osler.com/en/resources/regulations/2020/covid-19-quick-reference-considerations-for-employers#Section1-a  9Shapiro, Hulton, & Lucha, B. (2020, April). COVID-19: The Essential Need-to-Know Guide for Employers and Employees: Insights. Retrieved April 13, 2020, from https://www.dickinson-wright.com/news-alerts/covid19-the-essential-guide-for-employers#a. Federal Amendments to the Canada Labour Code

What Employers Need To Know During COVID-19 - Part 3

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In a continuing effort to support businesses and protect jobs by the Ontario government, a $1.9 billion WSIB financial relief package has been introduced with all premiums being deferred for six months to all businesses in the province covered by WSIB workplace insurance. Additionally, to help businesses in this time, WSIB will stop interest accrual on all outstanding premium payments.7 With these cost measures in place, WSIB will still continue to cover workers at all workplaces that are covered.

Learn more about the Financial Relief Package for Ontario Businesses.
When it comes to employees and WSIB coverage, some workplaces may pose a higher risk than others in exposing them to the COVID-19 virus. Regardless, a worker is still entitled to WSIB benefits if they contract the virus while at the workplace. If a diagnosis via the workplace proves to be true, that employee may be eligible for wage loss benefits that include:

• Any period in quarantine pre-diagnosis.9
• Healthcare benefits.9
• Permanent impairment benefits arising from the disease.9
• In cases of fatality, the employee’s survivors could receive WSIB benefits.9
Please read the Adjudicative approach to find out how WSIB is making decisions about COVID-19 claims.

Disclaimer

The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

References

1Brown, K., Meighen, C., Nearing, R. W., Purkey, F., & Juneja R. (2020, April 13). Tax Measures Under Canada’s COVID-19 Economic Response Plan. Retrieved April 15, 2020, from https://www.mccarthy.ca/en/insights/blogs/mccarthy-tetrault-tax-perspectives/tax-measures-under-canadas-covid-19-economic-reponse-plan 2Business, C. F. O. I. (2020, April 10). Canadian Federation Of Independent Business. Retrieved April 14, 2020, from https://www.cfib-fcei.ca/en/advocacy/employment-and-labour/ontario-covid-19-relief-measures-your-business  3Canada Revenue Agency. (2020, March 31). Government of Canada. Retrieved April 15, 2020, from https://www.canada.ca/en/revenue-agency/campaigns/covid-19-update/frequently-asked-questions-gst-hst.html  4Department of Finance Canada. (2020, April 11). Archived – Additional Details on the Emergency Wage Subsidy. Retrieved April 14, 2020, from https://www.canada.ca/en/department-finance/news/2020/04/additional-details-on-the-canada-emergency-wage-subsidy.html  5Department of Finance Canada. (2020, April 11). Government provides further flexibility for employers to access the Canada Emergency Wage Subsidy. Retrieved April 13, 2020, from https://www.canada.ca/en/department-finance/news/2020/04/government-provides-further-flexibility-for-employers-to-access-the-canada-emergency-wage-subsidy.html  6Ministry of Finance. (2020, April 7). Employer Health Tax. Retrieved April 15, 2020, from https://www.fin.gov.on.ca/en/tax/eht/index.html  7Ministry of Labour, Training and Skills Development. (2020, March 26). UPDATED: Ontario Enabling Financial Relief for Businesses. Retrieved April 13, 2020, from https://news.ontario.ca/mol/en/2020/03/ontario-enabling-financial-relief-for-businesses-1.html  8Osler. (2020, March 19). COVID-19 Quick-Reference Considerations for Employers. Retrieved April 14, 2020, from https://www.osler.com/en/resources/regulations/2020/covid-19-quick-reference-considerations-for-employers#Section1-a  9Shapiro, Hulton, & Lucha, B. (2020, April). COVID-19: The Essential Need-to-Know Guide for Employers and Employees: Insights. Retrieved April 13, 2020, from https://www.dickinson-wright.com/news-alerts/covid19-the-essential-guide-for-employers#a. Federal Amendments to the Canada Labour Code

What Employers Need To Know During COVID-19 - Part 2

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Covid-19 In The Workplace

What happens if there is a confirmed case of COVID-19 among your employees? If you do find yourself in this situation, the disclosure of information should be kept to a minimal. During this time, the lines are blurred and questions arise on what is a reasonable amount of information to provide to your employees. The acknowledgement of this information to your employees will be influenced by factors such as: the employer’s health and safety obligations to employees under the Occupational Health and Safety Act, guidance from health authorities, advice from healthcare professionals and considerations such as the type, extent and volume of personal information required to be collected or disclosed in the circumstances.9 Currently, employers are advising coworkers who have been in close working conditions to someone who has tested positive for COVID-19 to protect themselves and prevent further exposure in the workplace.

Employees Right To Refuse Work During COVID-19

Under section 43 of the Occupational Health and Safety Act, most workers are entitled to refuse to work if they have a reasonable belief that working would put their personal health and safety at risk. During COVID-19, workers may refuse to work if their employer fails, refuses or can’t take appropriate measures to ensure the workplace is safe and will not spread COVID-19. On March 25, 2020, the Federal Government passed Bill C-13, COVID-19 Emergency Response Act. . A legislation that introduces amendments to the Canada Labour Code which provides unpaid leave of up to 16 weeks for employees who are unable/unavailable to work for reasons related to COVID-19 without the requirement of a medical note.9 However, the employee is required to provide written notice to their employer stating the reasons for leave. If an employer receives a written notice from an employee, the following must be noted:

• Reprisals: Employers cannot discipline, demote, lay-off, or dismiss an employee or threaten an employee with any of the foregoing because the employee is taking COVID-19 leave.9

• Benefits: Employers must still continue to provide pension, health, and disability benefits, and seniority or service accumulation for the duration of the leave. If applicable, employees are responsible for benefit contributions during the leave, unless they declare they wish to discontinue their benefits during the leave. Employers must continue to pay their proportionate contributions during the leave, if any.9

• Opportunities: Where an employee provides a written request, the employer must continue to provide information to the employee on leave of employment, promotion, or training opportunities relating to the employee’s qualifications that arise while the employee is on leave.9

• Vacation: Vacations may be interrupted to take COVID-19 related leave.9

• Parental Leave: The 78-week period for parental leave may be extended, and the 68 weeks available for parental leave may be interrupted in circumstances of a COVID-19 related leave.9

Job Protection During COVID-19

As of March 27, 2020, the Federal Government and certain provinces passed legislation to provide for new leaves of absence related to COVID-19. Leaves can be applied in the province of Ontario when (retroactive to January 25, 2020):

• The employee is under medical investigation, supervision or treatments for COVID-19.8

• The employee is acting is accordance with an order under the Health Protection and Promotion Act.8

• The employee is in isolation or quarantine in accordance with public health information or direction.8

• The employer directs the employee not to work due to a concern that COVID-19 could be spread in the workplace.8

• The employer directs the employee not to work due to a concern that COVID-19 could be spread in the workplace.8

• The employee needs to provide care to a person for a reason related to COVID-19 such as a school or day-care closure.8

• The employee is prevented from returning to Ontario because of travel restrictions.8

Learn more about the Infectious Disease Emergency Leave

Disclaimer

The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

References

1Brown, K., Meighen, C., Nearing, R. W., Purkey, F., & Juneja R. (2020, April 13). Tax Measures Under Canada’s COVID-19 Economic Response Plan. Retrieved April 15, 2020, from https://www.mccarthy.ca/en/insights/blogs/mccarthy-tetrault-tax-perspectives/tax-measures-under-canadas-covid-19-economic-reponse-plan 2Business, C. F. O. I. (2020, April 10). Canadian Federation Of Independent Business. Retrieved April 14, 2020, from https://www.cfib-fcei.ca/en/advocacy/employment-and-labour/ontario-covid-19-relief-measures-your-business  3Canada Revenue Agency. (2020, March 31). Government of Canada. Retrieved April 15, 2020, from https://www.canada.ca/en/revenue-agency/campaigns/covid-19-update/frequently-asked-questions-gst-hst.html  4Department of Finance Canada. (2020, April 11). Archived – Additional Details on the Emergency Wage Subsidy. Retrieved April 14, 2020, from https://www.canada.ca/en/department-finance/news/2020/04/additional-details-on-the-canada-emergency-wage-subsidy.html  5Department of Finance Canada. (2020, April 11). Government provides further flexibility for employers to access the Canada Emergency Wage Subsidy. Retrieved April 13, 2020, from https://www.canada.ca/en/department-finance/news/2020/04/government-provides-further-flexibility-for-employers-to-access-the-canada-emergency-wage-subsidy.html  6Ministry of Finance. (2020, April 7). Employer Health Tax. Retrieved April 15, 2020, from https://www.fin.gov.on.ca/en/tax/eht/index.html  7Ministry of Labour, Training and Skills Development. (2020, March 26). UPDATED: Ontario Enabling Financial Relief for Businesses. Retrieved April 13, 2020, from https://news.ontario.ca/mol/en/2020/03/ontario-enabling-financial-relief-for-businesses-1.html  8Osler. (2020, March 19). COVID-19 Quick-Reference Considerations for Employers. Retrieved April 14, 2020, from https://www.osler.com/en/resources/regulations/2020/covid-19-quick-reference-considerations-for-employers#Section1-a  9Shapiro, Hulton, & Lucha, B. (2020, April). COVID-19: The Essential Need-to-Know Guide for Employers and Employees: Insights. Retrieved April 13, 2020, from https://www.dickinson-wright.com/news-alerts/covid19-the-essential-guide-for-employers#a. Federal Amendments to the Canada Labour Code

What Employers Need To Know During COVID-19 - Part 1

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On April 11, 2020, the Department of Finance introduced the COVID-19 Emergency Response Act, No.2, which provides additional flexibility the Canada Emergency Wage Subsidy (CEWS), which was first launched on March 27, 2020.

In order to better address the reality of this situation and work with the ongoing changes, the Government of Canada has introduced the following flexibilities:

• To measure revenue loss, it is proposed that all employers have the flexibility to compare their revenue of March, April and May 2020 to that of the same month of 2019, or to an average of revenue earned in January and February 2020.5

• For March, the Government proposes to make the CEWS more accessible than originally announced by reducing the 30 per cent benchmark to 15 per cent, in recognition of the fact that many businesses did not begin to be affected by the crisis until partway through the month.5

• In recognition that the time between when revenue is earned and when it is paid could be highly variable in certain sectors of the economy, it is proposed that employers be allowed to measure revenues either on the basis of accrual accounting (as they are earned) or cash accounting (as they are received). Special rules would also be provided to address issues for corporate groups, non-arm’s length entities and joint ventures.5

• Registered charities and non-profit organizations would also be able to benefit from the additional flexibilities being provided to employers with respect to the revenue loss calculation. In addition, to recognize that different types of organizations are experiencing different types of funding pressures, it is proposed that charities and non-profit organizations be allowed to choose to include or exclude government funding in their revenues for the purpose of applying the revenue reduction test.5

CEWS would provide a 75 per cent wage subsidy to eligible employers for up to 12 weeks from March 15 to June 6, 2020. Eligible employers would include individuals, taxable corporations, partnerships consisting of eligible employers, non profit organization and registered charities.4 The Canadian Emergency Wage Subsidy would apply at a rate of 75 per cent of the first $58,700 normally earned by employees, which would represent a benefit of up to $847 per week, per employee.5

The Canadian government will continue to carefully monitor all developments relating to the COVID-19 outbreak and continue to take further action to protect Canadians and the economy.

Disclaimer

The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

References

1Brown, K., Meighen, C., Nearing, R. W., Purkey, F., & Juneja R. (2020, April 13). Tax Measures Under Canada’s COVID-19 Economic Response Plan. Retrieved April 15, 2020, from https://www.mccarthy.ca/en/insights/blogs/mccarthy-tetrault-tax-perspectives/tax-measures-under-canadas-covid-19-economic-reponse-plan 2Business, C. F. O. I. (2020, April 10). Canadian Federation Of Independent Business. Retrieved April 14, 2020, from https://www.cfib-fcei.ca/en/advocacy/employment-and-labour/ontario-covid-19-relief-measures-your-business  3Canada Revenue Agency. (2020, March 31). Government of Canada. Retrieved April 15, 2020, from https://www.canada.ca/en/revenue-agency/campaigns/covid-19-update/frequently-asked-questions-gst-hst.html  4Department of Finance Canada. (2020, April 11). Archived – Additional Details on the Emergency Wage Subsidy. Retrieved April 14, 2020, from https://www.canada.ca/en/department-finance/news/2020/04/additional-details-on-the-canada-emergency-wage-subsidy.html  5Department of Finance Canada. (2020, April 11). Government provides further flexibility for employers to access the Canada Emergency Wage Subsidy. Retrieved April 13, 2020, from https://www.canada.ca/en/department-finance/news/2020/04/government-provides-further-flexibility-for-employers-to-access-the-canada-emergency-wage-subsidy.html  6Ministry of Finance. (2020, April 7). Employer Health Tax. Retrieved April 15, 2020, from https://www.fin.gov.on.ca/en/tax/eht/index.html  7Ministry of Labour, Training and Skills Development. (2020, March 26). UPDATED: Ontario Enabling Financial Relief for Businesses. Retrieved April 13, 2020, from https://news.ontario.ca/mol/en/2020/03/ontario-enabling-financial-relief-for-businesses-1.html  8Osler. (2020, March 19). COVID-19 Quick-Reference Considerations for Employers. Retrieved April 14, 2020, from https://www.osler.com/en/resources/regulations/2020/covid-19-quick-reference-considerations-for-employers#Section1-a  9Shapiro, Hulton, & Lucha, B. (2020, April). COVID-19: The Essential Need-to-Know Guide for Employers and Employees: Insights. Retrieved April 13, 2020, from https://www.dickinson-wright.com/news-alerts/covid19-the-essential-guide-for-employers#a. Federal Amendments to the Canada Labour Code