Wrongful Dismissal - When You Are Fired Without Cause

Breface:

Losing a job is a very unpleasant experience. It is always worse when it is done without cause. You became redundant for financial or other business reasons unrelated to your performance. The common law cannot give you your job back but it does provide some relief. It is called “reasonable notice”. The following discussion is about the dismissal of non-unionized employees in Ontario from workplaces governed by provincial law. If you work at a workplace governed by federal legislation or are a unionized employee the rules are different.

Reasonable Notice:

Your employer must give you a notice of termination and provide remuneration in some manner for a period of time known as “reasonable notice.” There are three methods of doing so which are:

1. Give you working notice such that you continue working, and being paid, from the time of receiving your notice to an actual departure date in the future;
2. Give you pay in lieu of notice, a lump sum payment at the time of notice and ask you to depart immediately;
3. Give you notice and ask that you depart immediately, without a lump sum payment but with a promise to pay you for a set period of time;
4.  A combination of the above.

For What Period of Time:

There are no hard and fast means of calculating the period of reasonable notice. It is not a formula such as a month of pay for every year of working. It is a judgment call based on how long you worked, your age, the type of position you held, your compensation (salary and benefits) and the what other jobs are available in other workplaces. This is a matter for negotiation, or to be determined by an arbitrator or a judge.

Is There A Minimum Time Period:

The short answer is yes. The Employment Standards Act (ESA), at s. 57, calls for minimum (reasonable) notice periods which vary from one week to eight weeks depending on the length of your employment. This is a minimum requirement on termination. The common law period of reasonable notice is almost always longer.

The ESA, under s. 64, also specifies a formula for calculating notice for large layoffs or in larger companies. The formula is one week's wages times the number of years and any additional months of employment. So if you earned $1,000 a week and worked for 10 years and six months the severance would be $10,500.

The Duty to Mitigate:

As a dismissed employee you have a duty at common law to mitigate your losses. This requires you to take reasonable steps to find alternate employment. If you do a reasonable notice period remains the same but the amount you are paid is reduced by your new income. If you do not take reasonable steps, then to the extent the employer can prove that, and show available alternate work, your losses will be reduced by the potential income you should have earned.

Can These Minimum Periods Be Made Shorter By Contract:

Employers are aware of the law. They often insist on a written contract of employment. Those contracts invariably specify a contractual period of notice on termination. Those clauses cannot reduce the ESA time frames but they can substitute a severance formula in place of your common law rights to reasonable notice.

Are Reduced Termination Clauses Enforceable:

The Supreme Court of Canada (SCC) has decided that any termination clause that calls for a payment less than the minimum standards set by the ESA is void. At the same time it stated that as long as the minimum was provided, a termination clause could alter the common law presumption of reasonable notice on termination. Therefore such clauses must be compliant with the ESA and they must unambiguously exclude the right to common law reasonable notice.

The decision set off a maelstrom of conflicting decisions. Reconciling them is nearly impossible. The struggle is human. Judges are loathe to exclude the right to common law damages and this often leads to some tortured contractual interpretations. 

A recent example is the case of Amberber v. IBM Canada Ltd. IBM brought an unsuccessful motion to dismiss the claim. The Ontario Court of Appeal (ONCA) reversed the decision. The termination clause read as follows:

TERMINATION OF EMPLOYMENT

If you are terminated by IBM other than for cause, IBM will provide you with notice or a separation payment in lieu of notice of termination equal to the greater of (a) one (1) month of your current annual base salary or (b) one week of your current annual base salary, for each completed six months worked from your IBM service reference date to a maximum of twelve (12) months of your annual base salary. This payment includes any and all termination notice pay, and severance payments you may be entitled to under provincial employment standards legislation and Common Law. Any separation payment will be subject to applicable statutory deductions. In addition, you will be entitled to benefit continuation for the minimum notice period under applicable provincial employment standard legislation. In the event that the applicable provincial employment standard legislation provides you with superior entitlements upon termination of employment (“statutory entitlements”) than provided for in this offer of employment, IBM shall provide you with your statutory entitlements in substitution for your rights under this offer of employment.  

Principles of Interpretation:

The ONCA reviewed the usual principles of interpretation in dealing with employment contracts as set out in Wood v. Fred Deeley Imports Ltd. Those principles are:

1.    Such contracts are most often written by the employer, usually as a condition of employment, so the contra proferentem rule would apply. In English this means interpretation against the draftsman so that where the contract is ambiguous, the version or reading which most benefits the employee would be used;

2.      Further, as the employee usually has little or no bargaining power where a termination clause can reasonably be read in more than one way, the version that benefits the employee is to be preferred.

Ambiguity:

There must be a genuine ambiguity before these principles are applied. Ambiguity means the existence of more than one possible meaning which leads to confusion as to which meaning was intended. In common law, it means more than just two competing interpretations as in any dispute that would always be the case. Rather it is to be determined by an objective evaluation.

The OCA read the termination clause as a whole-they did not sever it into parts as the motions judge did. Read as a whole the meaning was plain. There was no ambiguity and a court should not strain to find one where none exists.

Sum & Substance:

1. You can expect to see this termination clause, or similar versions, in employment contracts going forward;
2. The ONCA appears to be moving towards a common sense approach to such contracts and away from  a strained approach to finding ambiguity;
3. The impact of the clause being enforceable is significant. The employee received some working pay and then the sum of $24,121.59 on termination. This was the minimum amount under the ESA. His common-law entitlement would certainly have been greater.

A Mandatory Residential Lease Form for Ontario

Breface:

The type and form of residential leases in Ontario has historically been a landlord’s game. Such leases could be oral but more often were written by landlords, their property managers, agents or lawyers. The terms were obviously written to suit landlord's interests subject to the limitations set out in the Residential Tenancies Act (RTA) and The Ontario Human Rights Code (OHRC). 

Such leases had then to be “observed” by unsophisticated tenants often to their detriment. Further, the Landlord and Tenant Board, in its role as dispute adjudicator, had to interpret these varied forms and types of leases leading to decisions which were not always consistent, binding or of much precedential value. 

Given this background the Ministry of Housing has created a mandatory new standard lease form for most private residential tenancies in Ontario. The goal is reduce the number of hearings and simplify the relationships between landlords and tenants. Whether these goals will be achieved is a definite uncertainty.

Effective Date & Exemptions:

The new standard form is effective as of April 30, 2018. It must be used, with some exceptions, for all new residential tenancy leases on or after that date. 

The exceptions are:

1.           Leases signed before the effective date and renewed automatically as a month to month tenancy (does apply where a new lease is negotiated);
2.           Co-Operative Housing;
3.           Other accommodation types that are exempt from the Act (see s.5 of the RTA);
4.           Care Homes as defined in the TAA;
5.           Mobile Home Parks and Land Lease Communities;
6.           Social & Supportive Housing that is exempt from the rent increase guidelines

Standard form leases for numbers 4,5 & 6 above are expected from the Ministry in the near future.

      

      Goal & Purpose:

The new form attempts to both simplify and standardize the terms of residential tenancy leases. It sets out the respective rights and obligations of the landlord and the tenant(s). Equally it sets out what the lease cannot deal with or rights that cannot be displaced. This is the Ministry’s attempt to reduce confusion and create certainty. The form is available at Service Ontario in the Central Forms Repository. It can be filled in electronically or printed and filled out manually.

Tenant Protections:

The form makes it clear that the Ontario Human Rights Code applies to residential housing and that the protections in the Residential Tenancies Act cannot be abrogated by anything in the lease. Otherwise the form sets out all the usual terms of a lease with instructions and cautions where needed.

Additional Terms:

Additional terms can be added to the lease as an appendix or attachment. Any additional terms cannot abrogate the standard terms or the Act or the lease form. If they do they are unenforceable. Examples of enforceable terms would be changes to be made by the landlord before the tenant moves in or providing rules for the use of common areas or amenities. Void terms would include no pets (except possibly in condominiums), prohibiting guests or roommates, or asking for deposits, fees or penalties not permitted by the RTA.

Presumably the parties will both have copies of the standard lease once signed failing which the tenant can demand a copy. If the form is not used the tenant can demand a copy of the lease in the standard form which the landlord must provide within twenty-one (21) days. If the landlord fails to comply the tenant may withhold one (1) month’s rent or give 60 calendar days’ notice to terminate a yearly or fixed term lease. Any other shorter periodic term could of course also be cancelled by its terms. 

A Copy of the Standard Lease:

If the tenant chooses to withhold rent the landlord has thirty (30) days to provide a standard form lease at which time the rent must be paid. If the landlord does not do so in time it appears that the rent need never be paid. However the rent withheld cannot exceed one month even if the landlord never provides a standard form lease. This seems odd in that a landlord could use a non-standard lease by giving up one month’s rent. Given rent controls that is however unlikely. The risk of providing the standard lease late (more than thirty (30) days after rent is withheld) is the loss of that rent.

The tenant also has the right upon receiving the standard form lease (where the original was non-standard) within twenty-one (21) days of the demand, to terminate the tenancy within thirty (30) days if they have not yet signed the new lease in standard form.

Outline of The Standard Form of Residential Lease:

1    1.      Sets out the parties;
2.      Provides for a description of the leased premises and the number of parking spaces if any. It also specifies if the unit is a condominium in which case the tenant must comply with its declaration, by-laws and rules;
3.      Contact information is recorded and the method of communicating;
4.      The term of the tenancy is to be specified and the tenant is advised that they do not have to move out at the end of a term;
5.      The amount of rent, when and how it is to be paid and any additional charges. It also advises the tenant that they need not agree to post-dated cheques or automatic withdrawals and  the amount of NSF fees;
6.      What services are included in the rent.  If the tenant is to pay electricity the landlord must provide the tenant with its cost over the last twelve (12) months in the appropriate form;
7.      Whether there is a rent discount and what it is;
8.      Whether a rent deposit is required and if so that it can only be for one rental period, the last one, and cannot be used as a damage deposit;
9.      Is a refundable key deposit required;
10.  Whether smoking is allowed and if so where and when. This presumably applies to both cigarettes and shortly marijuana subject to any application of the Human Rights Code;
11.  Whether there are tenant’s insurance requirements. This deals with liability insurance. Contents insurance is up to the tenant;
12.  What the tenant can do to decorate the unit without the landlords permission;
13.  Who is responsible for maintenance and repairs;
14.  Assignment or subletting is only done with the landlords consent which is not to be unreasonably or arbitrarily withheld;
15.  What additional terms there are and warnings about what is and is not permitted to be included in these additional terms;
16.  No changes are permitted except if consented to and reduced to writing;
17.  Signatures.

Appendix (meant as a guide not as legal advice)

A.     When the form is to be used;
B.      Impact of a change in landlords;
C.      Renewing a tenancy agreement;
D.     Ending a tenancy;
E.      Giving Notice;
F.       Rent;
G.     Rent Discounts;
H.     Deposits;
I.        Rent Increases and Decreases;
J.        Maintenance and Repairs;
K.      Vital Services;
L.       Harassment;
M.   Discrimination;
N.     Landlord’s rights of Entry;
O.     Locks;
P.      Assignment and Subletting;
Q.     Guests;
R.      Pets
S.      Smoking;
T.      Smoke and Carbon Monoxide Alarms;
U.     Resolving Disputes

Your Land Is My Land - Part I - Prescriptive Easments

  

Breface:

The general rule is that the land you own is yours to do with as you wish and to exclude others from using it. That is an oversimplification of course as there are multiple restrictions on such desired uses from many sources. An example is the Planning Act which prevents subdivision of land without approval.

This post though is not about legislative or governmental restrictions in Ontario. It is about common law encroachments through use by another. You have no doubt heard about "squatters rights" or the saying that "possession is 9/10ths of the law. This is the common law concept of "adverse possession" or the risk of losing the title to your land through the open and continuous use of it by another. This will be dealt with in a separate post. A second possibility is the concept of prescriptive easements which is the ability of another person or persons to gain the right to use some or all of your land for specified purposes through past continuous use for that purpose. This is the focus of this posting. A prescriptive easement can be found based on either the s. 31 of the Real Property Limitations Act, through the doctrine of lost modern grant, or at common law.

What Is Required To Establish a Prescriptive Easement?

The Ontario Court of Appeal (ONCA) has recently released two decisions on prescriptive easements being English v Perras, and, Hunsinger v. Carter. These two recent cases set out what must be proven by the person(s) claiming the right to use your land which is as follows:

1. That the claimant(s) enjoy the benefit of the use of your land whether it be it for access, light, support or other purposes;
2. That the two pieces of property in issue (theirs and yours) are owned by separate persons;
3. That the use made of your land must be reasonably necessary for the "enjoyment" of the claimants land;
4. That the use made of your land must have been continuous, open and peaceful for a set period of time. Under the Real Property Limitations Act, the period is forty (40) years immediately before the claim is brought to court. Under the doctrine of lost modern grant, the period is any twenty (20) years of the use at issue. At common law, the set period is from time immemorial or the year 1189. Practically speaking this is meaningless in Canada;
5. That the entire period of use made by the claimant(s) must also have been without your permission. The permission to needed to defeat a prescriptive easement can be oral or written under the doctrine of lost modern grant but must be in writing to defeat a claim under the Real Property Limitations Act.

If and when a prescriptive easement is established the claimant(s) land would then be known as the dominant tenement and your land as the servient tenement.

Impact of the Land Titles System:

The Land Titles system in Ontario abolished all prescriptive easements. Accordingly, the periods of use discussed above in item (4) must have existed before the land was transferred into the land Titles registry.

Evidence Needed:

The claimant(s) must establish all five (5) requirements above through evidence. The evidence can be from witnesses who would describe the use made of your land, when it was made, and possibly whether it was done without your permission. You are entitled to respond to the claimant(s) evidence. You might defend by attacking any of the required elements and the most likely being that it was done with your permission. At the conclusion of the evidence, the judge will decide what the facts are and then apply the law to those facts.

What Uses Are You Permitted Over Such An Easement?

You may also wish to make some use of your land that the claimant says interferes with their prescriptive easement. If a prescriptive easement is not established then you can proceed. If one is established you can still encroach upon the easement unless your use amounts to a substantial interference with the use of the established easement. The test for substantial interference is not one of reasonable necessity but of convenience. Can the dominant tenement still use the easement over your land as conveniently as before?

When an Easement Dispute Arises:

The bad news is that all easement disputes are stressful, time-consuming and expensive. They necessarily occur between neighbours. When such disputes arise it is best to first retain legal advice and thereafter to work out an accommodation if at all possible. 

The good news is that these type of disputes will be thing of the past in the coming years. Firstly the Land Titles system has abolished prescriptive easements. Secondly, as we move forward under the new Registration system the ability to prove such easements becomes more remote, if not impossible.

MEDIATION - What Is It? Why Use It?

Breface:

Disputes can take many forms. They may be legal entanglements or more simply disagreements about living arrangements, complaints about service received, security concerns, noisy neighbours etc. None of these disputes are pleasant and all are stressful. They all can and should be dealt with through mediation whenever possible. It's always a happy moment when you can put such a problem behind you!

Mediation is available from many sources in most communities. It does usually come at a cost-the cost of the meditators fee for their time and facilities. However, in London, Ontario free mediation of your dispute is available from The Dispute Resolution Centre (DRC). The Centre is one of the projects facilitated and offered by The Community Legal Services Clinic at Western Law, Western (University) in London, Ontario. The only exclusions are criminal charges and family law issues.

What Is Mediation?

It's fair to ask what mediation is. It is a form of Alternative Dispute Resolution (ADR). Simply put, it is an alternative to the court or tribunal process or other more traditional forms of dispute resolution. The hallmarks of mediation are:

• It's consensual. All the stakeholders to the dispute agree to get together and try to arrive at a resolution;
• It's a level playing field. It provides a neutral setting and a neutral mediator;
• No decision is made. The process does not deal with fault, blame, or right and wrong. The focus is on problem-solving not determining a truth. The goal is an agreement;
• Design your own settlement and terms. This collaborative technique leads to greater adherence and commitment to the promises made;
• The stakeholders are empowered. The parties gain control of the outcome;
• The process is simpler. There is less reliance on evidence or witnesses;
• The discussion is not confined to legal issues only. It is interest focussed not positional focussed. It's a creative process;
• It's confidential and private;
• It's quick and flexible. Mediation can occur at any stage of the process or multiple times if needed;
• No rights are waived;
• It  can have a cost but it can also save costs (free at DRC);
• Settlement achieved 80 % of the time;
• Enforceable as a contract.
• DRC is run by lawyers who train and supervise law students in the art of mediation. The students do the work and act as the mediators. This should be seen as an advantage. The students are keen, extremely hard working, conscientious and determined to solve your problem. Pretty good bang for the buck!

• However, if you have a complex, difficult and monetarily large dispute you are best off with a lawyer to represent you and to seek their help in selecting a professional mediator and to guide you through the mediation.

Am I My Brother’s Keeper-Social Host Liability

Breface:

It’s late November and no doubt you have already been inundated with the holiday season at any of your local retailers. Getting in the spirit, the thought of hosting a party comes to mind. A few friends, a few drinks, some laughs and a few more good memories to treasure. What could go wrong?
You can control your own consumption-you are a responsible drinker. If my guests cannot control theirs they should know not to drive while impaired when they leave. Remember though what Cain said to his God after killing his brother Abel and being asked where Abel was-I know not, am I my brother’s keeper?  The moral answer is obvious, the legal one less so.

Negligence:

A social host’s legal liability is founded in the law of negligence. The tort of negligence has a basic structure. A claimant must establish four things being one, a duty of care, two, a breach of that duty, three, that injury was inflicted on the claimant by the breach, and four that damage occurred as a result.

Social Host Outcomes:

The danger with any consumption of an intoxicating substance is that the inebriated may injure themselves, but more likely injure others who come to be in their path. Most often this is the resulted of driving a vehicle while impaired. If the intoxication occurred at your party can those innocent victims sue you to recover damages for their injuries?

The Big Issues:

The outcome of any social host litigation is most often based on an analysis of the facts relating to whether a duty of care arose for the host in the circumstances. If a duty arose, the next most common issue is whether it was breached through an examination of the host's behaviour and knowledge.

The leading case on the subject was rendered by the Supreme Court of Canada (SCC) in Childs v. Desormeaux. From that case, and the jurisprudence that has followed, it is clear that there is no set formula for determining social host liability. Each case is very much dependant on its factual base. The cases are most often ones where the social host took no action to stop their guest and ask whether there arose a duty to do so.

A Duty of Care:

The legal tests to establish a duty of care are ones that were developed in the common law over the past two centuries. For simplicity’s sake, they will be discussed here as the concepts of foreseeability and proximity.

Foreseeability:

It makes sense to impose a duty to act where the host knows that their guest is intoxicated and that it is “foreseeable” that they may engage in conduct that could injure others such as driving. If there is evidence that the host was, or should have been aware, of their guest's impairment then a duty of care is more likely to emerge.

Foreseeability, when found, is likely to establish a duty of care but only where there was an overt act by the host which directly caused foreseeable physical harm. Where it is sought to find the host liable for a failure to act, foreseeability alone is not enough. A nexus must also be found between the host and the damage causing guest i.e. proximity.

Proximity:

In order to require the host to act to prevent the harm, there must be something more found in the evidence. There is a requirement to find a “special link” known as proximity.

The SCC in Childs listed three types of relationships that would create such a ‘special link”. The list is not exclusive. The listed categories are:

1. Where a defendant intentionally attracts and invites third parties into an inherent and obvious risk that he or she has created or controls;
2. Paternalistic relationships of supervision and control; and
3. Where a defendant exercises a public function or engages in a commercial enterprise that includes implied responsibilities to the public at large.

The common element in these, and any other relationships that may be found to be “special links”, is the host's creation of the risk of harm or in having a paternalistic relationship.

Policy Considerations:

If foreseeability and proximity are found then a duty of care is established. The duty, however, may be negated by broader and overriding policy considerations. This further test was established by the SCC in Kamloops v. Nielsen. The question the court must ask is whether there are policy considerations which ought to negate or limit the scope of the duty, the class of persons to whom it is owed or the damages to which breach may give rise.

It is hard to imagine such policy considerations limiting or negating the duty of a social host where there is otherwise found to be a positive duty to act as discussed above.

Sum & Substance:

If you are determined to host a party here are some suggestions you might consider:

1. Limit the number of people who are invited. One hundred guests, even forty, is only inviting trouble;
2. Make it a private party not an open invitation to all comers;
3. Do not serve or provide alcohol and suggest guests bring their own;
4. If you serve any alcohol, limit the amount available and have a designated and sober bartender to watch the level of consumption by your guests;
5. Avoid any risky behaviour at the party such as underage drinking or the use of drugs including cannabis, the playing of drinking games etc;
6. Serve food and water;
7. Stay sober yourself;
8. Watch your guests for any signs of impairment;
9. Provide business cards for taxis or drive home services such as “Keys”;
10. If all else fails, offer to drive your guests or find them a ride home.