New Construction Law Case Tells Us That We Cannot Combine Breach of Trust Claims with Construction Lien Actions Amendments to the Construction Lien Act in 2017, now called the Construction Act (the “Act”), have left construction litigators confused as to whether they could combine breach of trust claims with construction lien actions. Recently, the appeal case of Devlan Construction Ltd. v. SRK Woodworking Inc. (“SRK Woodworking”) at the Ontario Superior Court of Justice clarified that breach of trust claims cannot be joined with construction lien actions.[1] Section 50(2) of the previous Construction Lien Act expressly provided that “[a] trust claim shall not be joined with a lien claim but may be brought in any court of competent jurisdiction.”[2] In the new Act, however, that section was removed altogether. The exclusion of the express provision in the new Act made it unclear whether it became acceptable to join breach of trust claims together with construction lien actions. “The issue on appeal, however, is not a question of the wisest policy choice to be made,”[3] said Justice Corbett. “The question is: what do the Act and the Regulations provide?”[4] While it may seem convenient and more cost-efficient to combine breach of trust and construction lien claims to be tried in court at the same time, there are long-standing reasons as to why those two claims were traditionally separated and continue to be separated. Lien proceedings are meant to be fast; there are consequences to stalling the construction process for a long period of time. Trust proceedings, on the other hand, are longer and more complex by nature and therefore present a problem when combined with construction lien actions. In Damasio Drywall v. 2444825 Ontario Limited, Associate Justice Wiebe found that “[i]f the Legislature intended to allow trust claims to be joined with lien claims, it should have stated so explicitly, given this mandate and the nature and complexity of a trust claim. It did not.”[5] The Associate Justice subsequently upheld his finding in the case of 6628842 Canada Inc. v. Topyurek.[6] Before the recent SRK Woodworking appeal, however, Justice Harper disagreed and overruled those two prior decisions altogether. Justice Corbett considered a couple of factors to support his decision in SRK Woodworking. One factor is that the Act “neither permits nor prohibits joinder of claims in a construction lien proceeding.”[7] Furthermore, the Act allows a litigant to rely on the Rules of Civil Procedure where it does not address procedural matters.[8] Importantly, however, the Rules of Civil Procedure do not apply when deciding which types of claims can be brought together under the Act. Justice Corbett found that when “reading the Act as a whole, one can infer an intention on the part of the legislature to leave the issue of joinder to be addressed in the Regulations.”[9] Justice Corbett considered the effect of a new Regulation which became effective under the Act in 2019 which provides that “[a] plaintiff may, in an action, join a lien claim and a claim for breach of a contract or subcontract.”[10] Considering the Regulation specifically provides for the type of joinder that is permitted under the Act, it is implied that other joinder of claims, such as joining a breach of trust claim with a construction lien action, are not permitted. If you have any questions about construction law in general, please contact Christopher Statham at 416-446-5839 or christopher.statham@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” This blog was co-authored by Law Student, Sanaz Sakhapour. [1] Devlan Construction Ltd. v SRK Woodworking Inc., 2023 ONSC 3035 (CanLII). [2] Ibid at para 7. [3] Ibid at para 15. [4] Ibid. [5] Damasio Drywall Inc. v. 2444825 Ontario Limited, 2021 ONSC 8398 (CanLII) at para 8. [6] 6628842 Canada Inc. v. Topyurek, 2022 ONSC 253 (CanLII). [7] Supra note 1 at para 16. [8] R.R.O. 1990, Reg. 194. [9] Supra note 1 at para 23. [10] O. Reg. 302/18, s. 3(2). By Fauzan SiddiquiBlog, Construction LawJune 14, 2023June 25, 2023
What Do I Need to Consider Before Buying the Property Right Next Door? Are you interested in purchasing the property right next to yours? What about the empty lot bordering your cottage property that is up for sale? Property owners often consider purchasing an abutting property for a variety of reasons. An abutting parcel of land is one that shares at least one border with a landowner’s existing parcel of land. Reasons for purchasing an abutting parcel of land might include expanding the property that the landowner already lives on, family members who wish to own their homes next to each other, and farmers who want to grow their agricultural business by purchasing abutting parcels of farmland. Although buying an abutting parcel of land may be beneficial, there are important legal factors to consider. Those factors briefly explained below could save the landowner considerable expense. Who will be the registered owner(s) of the abutting lands? Beware of the risk of merger It is important to consider the registered ownership of the abutting properties. Although there are exceptions, the general rule is that if the same party owns abutting parcels of land, those parcels merge and cannot be sold or mortgaged separately. If the owner wishes to sell or mortgage one of the merged parcels, the land must be legally severed by way of a severance application to the local municipality. It is both a lengthy and expensive process to receive a consent to sever land to form a separate parcel of land all over again. Once the land is officially severed by the municipality, it can be sold or resold without worrying about another approval process unless a future owner chooses to merge the lands again. Why do I need permission to sever my land? The municipalities in Ontario want to make sure that their communities are protected and properly organized. Likewise, the municipalities must conduct planning reviews and approvals to ensure that future severed lands conform with their individual and established planning frameworks, that there would be no conflicts with the planning goals of the local community, and that neighbours would not be adversely affected. Multiple severed lands at the discretion of individual landowners can have many consequences for a community, such as affecting the natural environment where frequent small lots can impede proper sewage disposal systems, and increasing municipal services such as garbage collection, snow plowing and school busing for children. What can I do to avoid merging my properties? A real estate lawyer can help you to find the right configuration to ownership on title for a particular property in order to avoid an automatic merger with an abutting parcel that the buyer already owns. One example of a method to avoid an automatic merger is if one spouse owns a property and they want to purchase the property next door, they could have the other spouse own some percentage of the new property or become registered owners on title together, as joint tenants, where both spouses have equal rights and obligations to the property. What happens if one of the joint tenants of a property dies, and the remaining owner is the owner of both abutting properties? The death of a joint tenant will no longer result in an automatic merger of abutting parcels owned by the surviving owner. Amendments to address this situation were made to Ontario’s Planning Act in 2022. As a result, the surviving owner will be able to deal with each parcel separately without having to seek approval from the municipality. Purchase the property next door with confidence with the help of one of our highly experienced real estate lawyers at Devry Smith Frank LLP. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.” This blog was co-authored by law student Sanaz Sakhapour. By Fauzan SiddiquiBlog, Real EstateJune 9, 2023July 6, 2023
My Partner Took the House, the Kids, and Half of My Money – Can I At Least Keep the Dog? To many of us, pets are more than just animals; they provide companionship, unconditional love and affection, and become part of the family. In 2022, 60% of Canadian households owned at least one dog or cat. This number grew following the COVID-19 pandemic; one-third of pet owners have brought a pet into their home since the beginning of the pandemic. As the number of pet owners increases, so does the number of ‘pet custody’ disputes. These disputes have extended beyond the realm of dogs to include cats, reptiles, horses, and even pigs. People have even reported staying in a relationship solely to maintain access to a shared pet. These disputes leave many asking: who gets custody of your pets when your pets outlast your relationship? As many of us consider our pets to be as important as our children, we might assume that the answer lies in our pet’s best interests. The rightful owner should be the one with the bigger yard, who has the most time to spend with your pet, and who your pet is most attached to. Unfortunately, this is generally not the case in Ontario – however, recent decisions and legislative amendments hint that this could be changing. The Traditional Approach to Pet Custody The traditional approach to pet custody is that there is no pet “custody”. Animals have historically been considered chattel, or personal property, in the eyes of the law. The relevant legal test to determine ownership was who owned the animal and the adjudicator did not examine what was, or was not, in the animal’s best interests.[1] We’ve addressed this issue in two of our previous blogs on the topic of pet custody from 2017 and 2019. Courts have explicitly discounted the possibility of joint custody orders for pets as a waste of judicial resources and a source of additional stress, heartache, and wasted time and money for parties.[2] While this approach is straightforward and relatively easy for the courts to apply, it inevitably leaves one party vindicated, one heartbroken, and the best interests of the animal wholly unconsidered. But again, change may be coming. A ‘Contemporary’ Approach? Coates v Dickson, a recent Ontario Superior Court decision, adopted a ‘contemporary’ approach to dog ownership which examines the relationship between the dog and the parties claiming ownership. It states that the court must consider the following factors, including: whether the animal was owned by one of the parties prior to the relationship; an express or implied agreement in relation to ownership, either before or after the animal was acquired; the nature of the relationship between the parties when the animal was acquired; who purchased and/or raised the animal; who exercised care and control over the animal; who cared for the animal the majority of the time; who paid for the animal’s basic needs; whether the animal was a gift to one of the parties; what happened to the animal after the relationship between the parties ended; and any other indications of ownership or evidence of agreements relating to ownership.[3] This ‘contemporary approach’ incorporates elements of the traditional property-based approach, including evidence of ownership and who initially paid for the animal. However, in holding that “[o]wnership of a dog is an investment that goes beyond the mere purchase price,”[4] the court included non-property based factors, including who raised the animal, exercised care and control over them, and who was their primary caregiver. In this case, the court held that the two dogs in question were jointly owned by the former spouses and gave one to each spouse.[5] While this is far from a shared parenting time agreement, unless we’re operating under the law from The Parent Trap, it is a step towards a legal conception of pets as more than chattel. Legislative Changes in British Columbia In March 2023, amendments were proposed to British Columbia’s Family Law Act in an attempt to clarify the law on pets following the breakdown of relationships. If accepted, these changes would require the courts to consider each person’s ability and willingness to care for the animal, the relationship any children of the relationship have with the animal, and any risk of family violence or cruelty posed to the animal. Proponents of these amendments point to changing values in society surrounding pet ownership towards considering pets as family members and not property. There are currently no similar provisions in Ontario’s Family Law Act; however, if these amendments come into force in British Columbia, similar changes to family legislation throughout Canada could follow. In the Meantime, What Can I Do to Maintain Custody of My Pet? Under the current legislative regime, what can you do to ensure that you maintain custody of your pet if your relationship ends? Here are several things that can help: Keep detailed records of: who paid for your pet or their adoption fees; any unofficial agreement as to the ownership of your pet in case of a break-up; who pays for your pet on a daily basis, including food, veterinarian visits, grooming, and other basic needs; who is the primary caregiver of your pet; whether you brought your pet into the relationship or acquired them during the relationship with your partner; and whether your pet was a gift from one partner to the other. Make sure that you are listed on official paperwork as an owner of your pet, such as veterinarian records, adoption applications, and pet insurance policies. If you have or plan to get a cohabitation agreement or marriage contract, you can include a provision about who gets to keep your pet if the relationship ends. Refer to our previous blog on the legal avenues you can take to pursue custody of your pet, including commencing court proceedings or participating in arbitration. If uncertain, you can always consult with a family lawyer to discuss your options. If you have more questions about your family law matter, please visit our website or contact Katelyn Bell from Devry Smith Frank LLP at 416-446-5837 or katelyn.bell@devrylaw.ca. This blog was co-authored by Law Student, Leslie Haddock. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” [1] Baker v Harmina, 2018 NLCA 15 at para 12. [2] Ibid at paras 23-26. [3] Coates v Dickson, 2021 ONSC 992 at para 8. This approach has been adopted in subsequent Ontario decisions. For an example, see Duboff v Simpson, 2021 ONSC 4970 at paras 18-19. [4] Ibid at para 17. [5] Ibid at paras 19-20. By Fauzan SiddiquiBlog, Family LawMay 30, 2023August 24, 2023
I Want My Partner to Sign a Marriage Contract – How Can I Make Sure This Will Stand Up in Court? Marriage evokes thoughts of fairy tale romance, soulmates, and lifelong commitment and devotion to your partner. So, it can be awkward when you have to ask the love of your life to sign an agreement anticipating the end of your relationship. A marriage contract is a legal document signed by both spouses which defines how your family property will be divided and what support will be provided to you, your spouse, and your children following divorce or the death of a spouse. Although marriage contracts are criticized as being unromantic and uncomfortable, they are far from impractical. Even when the court system was paralyzed by COVID-19 in 2020, there were over 42,000 divorces granted in Canada. As with our previous discussion about the benefits of cohabitation agreements for common-law partners, there are many benefits to having a marriage contract. Marriage contracts provide for increased certainty, flexibility, and customization within the current legislative regime; for the protection of your assets; and helps to prevent lengthy, bitter, and expensive court battles. However, there are several limitations and restrictions when it comes to enforcing these contracts. This leaves many people wondering at the end of their relationship: is my marriage contract actually enforceable? Here are five things to consider: When Do I Have to Sign a Marriage Contract? Although the name implies that you must be married, you do not have to wait until marriage to sign a marriage contract. Marriage contracts are available to married couples and couples who intend to marry; however, for the latter, the contract does not come into effect until the date of marriage. Likewise, you are free to sign a marriage contract even years after marriage. If you are in a common law relationship and already have a cohabitation agreement, then that agreement will be deemed to be a marriage contract if you marry your common law partner. What are the Requirements for a Marriage Contract? There are strict procedural guidelines that must be followed for a marriage contract to be enforceable. The document must be in writing, signed by the couple, and witnessed. This means that oral marriage contracts are not valid in Ontario. What Can Be Included in my Marriage Contract? Marriage contracts can include terms related to the ownership in or division of property, support obligations, the education and moral training of the your children, and any other matter related to the settlement of the yours and your partner’s affairs. However, as a previous blog of ours discussed, several matters cannot be included in a marriage contract, including: decision-making responsibility and parenting time for children; and provisions which limit your rights regarding possession of the matrimonial home. Can my Marriage Contract Be Set Aside by the Courts? In Canada, courts tend to favour the validity of marriage contracts and strive to “respect private arrangements that spouses make for the division of their property on the breakdown of their relationship.”[1] However, even if a marriage contract is in proper form and contains no prima facie invalid terms as discussed in the previous section, courts may exercise their discretion to set it aside. Courts can set aside any provisions which they consider to not be in the best interests of any of your children or which are unreasonable in regards to the Child Support Guidelines or otherwise in relation to the support of a child. Section 56(4) of the Family Law Act also lays out specific circumstances in which courts can set aside a marriage contract or a provision within it: if a party to the contract failed to make full and accurate financial disclosure in regard to significant assets, or debts and other liabilities; if a party to the contract did not understand the nature or consequences of the contract; and if there are any other grounds present to justify setting aside a contract under general contract law, including unconscionability, duress, undue influence, fraud, or misrepresentation. However, this section is not a “get-out-jail-free” card for people trying to invalidate their marriage contract. This section does not apply if you signed the agreement while knowing your partner’s financial disclosure was inadequate. Courts will generally also refuse to set aside contracts if you simply failed to seek legal advice and if you failed to use due diligence in seeking disclosure. The Ontario Court of Appeal set out a two-stage test to determine whether part or all of a marriage contract can be set aside in Le Van v Le Van. The applicant must meet the following conditions: Have any of the circumstances set out in section 56(4) of the Family Law Act (as set out above) been engaged? Is it appropriate for the court to exercise discretion to set aside some or all of the agreement?[2] If this test is met, then the court can intervene to declare some, or all, of your marriage contract unenforceable. As these applications come down to the discretion of the courts, it can be difficult to predict how challenges will play out. To make your marriage contract as strong as possible, it is best to avoid engaging the above circumstances altogether. For your part, you and your partner should be honest when disclosing your financial situation and seek independent legal advice before signing. What Happens if my Marriage Contract is Unenforceable? If you and your partner divorce or if one of you dies and you do not have a valid and enforceable marriage contract, then the default rules under the Family Law Act apply. If you are uncertain about whether your marriage contract is enforceable or want to ensure that your marriage contract is enforceable, it is always good practice to consult with a family lawyer. If you have more questions about your family law matter, please visit our website or contact John P. Schuman from Devry Smith Frank LLP at 416-446-5080 or john.schuman@devrylaw.ca. This blog was co-authored by Law Student, Leslie Haddock. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” [1] Hartshorne v Hartshorne, 2004 SCC 22 at para 9. [2] Le Van v Le Van, 2008 ONCA 338 (CanLII) at para 51. By Fauzan SiddiquiBlog, Family LawMay 26, 2023June 10, 2023
Provincial Nominee Program: How it Works and Who can Apply The Provincial Nominee Program (“PNP”) allows foreign nationals to immigrate to Canada through provincial or territorial selection in partnership with Immigration, Refugees and Citizenship Canada (IRCC). Each province and territory mandate their own nomination streams through requirements tailored to address the province’s economic and labour needs. Quebec and Nunavut do not participate in the Provincial Nominee Program. Quebec has the authority to establish its own selection criteria for economic immigration. Depending on the applicable stream, applicants may use Express Entry or the non-Express Entry process. Applicants will also need to complete an immigration medical examination and submit police clearance certificates among other requirements. Under the non-Express Entry Stream, applicants who meet the eligibility requirements may apply to the province or territory for nomination. For the Express Entry Stream, applicants may apply to the province or territory for nomination. If selected, applicants will indicate the nomination in the Express Entry profile. Alternatively, an applicant may select provinces and territories of interest in the Express Entry profile, and a province or territory may send a corresponding “notification of interest” to the applicant. In addition to the requirements under the Provincial Nominee Program, Express Entry candidates must meet the minimum criteria for Express Entry including eligibility for the federal government’s Express Entry immigration programs. Provincial or Territorial Nomination: Ontario The Ontario Immigrant Nominee Program (OINP) operates nine different streams for candidates under its program. To qualify under OINP, applicants must register an expression of interest and receive an invitation to apply. Candidates may apply if they meet the eligibility requirements under the following: Foreign Worker Stream: Designed for applicants who are skilled foreign workers with a job offer in Ontario. International Student Stream: Designed for applicants who are recent graduates with a job offer in Ontario. In-Demand Skills Stream: Designed for applicants in an in-demand occupation with a job offer in Ontario. If an applicant has a Masters or PhD degree from an Ontario university, the applicant can apply for the following streams: Masters Graduate Stream: Designed for applicants who have obtained a masters degree from an Ontario university. PhD Graduate Stream: Designed for applicants who have obtained a PhD degree from an Ontario university. If an applicant has the skills and experience that an Ontario employer requires, the applicant can submit an application through the federal government’s Express Entry program: Human Capital Priorities Stream: Designed for applicants who have the required skilled work experience, education, and language abilities. Skilled Trades Stream: Designed for applicants with Ontario work experience in an eligible skilled trade. French-Speaking Skilled Worker Stream: Designed for French-speaking applicants with strong English language abilities. If an applicant is a foreign entrepreneur and wishes to establish a new business or grow an existing business in the province, the applicant may apply to the Entrepreneur Stream. To qualify, applicants must register an expression of interest and receive an invitation to apply. The OINP is a designated referral partner under Canada’s Global Skills Strategy. Conclusion The PNP program allows skilled workers to establish permanent residence in Canada through the various economic pathways that Canada’s provinces and territories have to offer. While PNP programs may be suitable for skilled workers with the required skills and work experience for a particular stream, Canada also offers other programs that allow foreign nationals to immigrate to Canada based upon other considerations such as family reunification. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. For more information about immigration and your specific circumstances, please contact a lawyer in the Immigration Law Group. This blog was co-authored by student-at-law, Abby Leung By Fauzan SiddiquiBlog, ImmigrationMay 19, 2023August 10, 2023
The Future of Firearms: Bill C-21 Proposes Strongest-Ever Restrictions Last week, Public Safety Canada released a statement on a hotly contested piece of legislation that could become the strictest gun law in North America. Bill C-21, which was first introduced one year ago, proposes amendments to four federal laws: the Criminal Code, the Firearms Act, the Nuclear Safety and Control Act, and the Immigration and Refugee Protection Act. Bill C-21 is currently at the committee stage, so it is a long way from becoming law. If it passes, though, it has major ramifications for those living in or coming to Canada. Below is everything you need to know about this huge bill as it relates to criminal law: Key Amendments to the Criminal Code Replica Firearms: the bill gives an enhanced, wider definition of replica firearms. Replica firearms are already a prohibited device, so this amendment prohibits more types of fake guns. No Altering Cartridges: a brand-new offence would be added to the Criminal Code. Even if the firearm itself is not a prohibited device, altering the magazine cartridge can turn it into a prohibited device if the alteration would cause the magazine to exceed its lawful capacity. This carries a maximum sentence of five years in prison. Orders on Emergency Prohibition or Emergency Limitations on Access: not only would the bill prevent more firearms from entering and/or remaining on the market, but it also calls for the empowerment of individuals to bar others from acquiring or in some ways accessing prohibited devices for public safety reasons. The individual seeking this order would apply to a provincial court judge who would hold a hearing with the applicant to determine whether public safety or the safety of the gun owner is at stake. If the applicant can satisfy the judge that this criterion is met, the order will be granted. These orders could last indefinitely. Stiffer Sentences: a four-year increase (i.e., from 10 to 14 years) in the maximum prison term for certain possession offences, as well as trafficking and importing and exporting firearms. Implications of These Amendments: What Does the Future Hold? As the government attempts to push the committee debates along, Canadians are looking to the future of firearms and their impact on our communities. The focus of Bill C-21 is really to ban assault weapons in general, as well as preventing guns from getting into the wrong hands. It is apparent that the government hopes that by limiting the kinds of firearms available, what they can be used for, and who can own and operate them, these goals will be achieved. If you or someone you know is facing firearms-related charges, or you are concerned about how the potential amendments to the Criminal Code impact your currently legal gun ownership, contact David Schell. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.” This blog was co-authored by student-at-law Rachel Weitz. By Fauzan SiddiquiBlog, Criminal LawMay 12, 2023May 25, 2023
Impaired Driving – Recent Decisions from the Supreme Court of Canada For those who practice impaired driving and 80 plus law, the Supreme Court of Canada (SCC) recently rendered two decisions of interest. R. v. McColman, 2023 SCC 8 On March 23, 2023 they decided an appeal from the Court of Appeal for Ontario, which dealt with whether a sobriety test under section 48 of the Ontario Highway Traffic Act could be conducted on private property. In the case of R. v. McColman, the Ontario Provincial Police had spotted the accused driving an all-terrain vehicle (ATV) out of a convenience store parking lot onto a highway. The officers followed the ATV and caught up to Mr. McColman about a minute later, when he had pulled onto the private driveway of his parents’ home. The officers approached Mr. McColman in the driveway and observed obvious signs of impairment. The officers arrested him for impaired driving and brought him to the police station, where he did two breathalyzer tests. Mr. McColman was then charged with impaired driving and operating a motor vehicle with a blood alcohol concentration above the legal limit. Key evidence at the trial was the testimony of one of the officers that they did not see any signs of impairment before stopping Mr. McColman. The officer explained that they stopped the accused while they were exercising their authority to conduct random sobriety checks under section 48(1) of Ontario’s Highway Traffic Act (HTA). This section gives the police the authority to randomly stop a motor vehicle and check if the driver is sober. The trial Judge convicted Mr. McColman of driving with excess blood alcohol. Mr. McColman appealed the trial decision. He argued the sobriety stop was illegal under section 48(1) of the HTA because it was conducted on private property. Mr. McColman’s appeal eventually made its way to the Supreme Court of Canada. The SCC agreed with the argument of Mr. McColman and held that the officers did not have the authority under section 48(1) of the HTA to conduct the random sobriety stop in the private driveway. In their opinion, the HTA defined a “driver” as someone who drives or has care or control of a vehicle on a highway. A highway is defined as a “common and public highway, street, avenue that is intended for or used by the general public”. They said Mr. McColman was not a driver for the purpose of section 48(1) because he was not on a highway when the police made the stop. As such, the stop was unlawful, resulting in the arbitrary detention of Mr. McColman and the violation of his section 9 Charter rights. The success of this appeal argument was likely of little comfort to the accused. In the end, the SCC ruled that despite the breach of Mr. McColman’s section 9 rights under the Charter, the breathalyzer results obtained from the unlawful stop were still admissible under section 24 (2) of the Charter. In determining whether to exclude the evidence, the Court felt that due to the nature and importance of the evidence, as well as the seriousness of the offence, admitting the evidence was warranted despite the Charter breach. As a result the conviction of Mr. McColman was upheld. 2. R. v. Breault, 2023 SCC 9 In the second case arising out of Quebec, the SCC ruled on whether a police demand to provide a sample into an Approved Screening Device (ASD) was valid when police did not have the device with them at the time of the demand. In the Breault case the police had stopped the accused after reports that someone was driving an all-terrain vehicle while drunk. The officers wanted to take a breath sample from Mr. Breault, but they did not have an ASD on hand. They radioed nearby officers to obtain a device. While still waiting for the device, the officers demanded that Mr. Breault provide a breath sample and Mr. Breault refused three times to provide a sample. Mr. Breault was then charged with refusing to comply with a demand by police to provide a breath sample. In their April 13, 2023 decision, the SCC determined that such a demand was invalid as it was not in compliance with the provision in the Criminal Code that such a sample be provided “forthwith”. As outlined in the case brief from the Supreme Court, Writing for a unanimous Court, Justice Suzanne Côté ruled that the validity of a demand to provide a breath sample requires that police have immediate access to an ASD at the time the demand is made. According to Justice Côté, the word “forthwith” in section 254(2)(b) must, as a general rule, be given a strict interpretation that reflects its ordinary meaning, namely “immediately” or “without delay”. At this step of the detection procedure, a detained driver does not have a right to counsel as guaranteed by section 10(b) of the Canadian Charter of Rights and Freedoms, since the driver must provide a breath sample immediately. The limit on this right is justified because the detention is very brief. It is therefore essential to the constitutional validity of this provision that the interpretation given to the word “forthwith” be consistent with its ordinary meaning. As she noted, “[t]he more flexibly the word ‘forthwith’ is interpreted, the less the recognized justification for limiting the right to counsel holds up”. Justice Côté stated that, exceptionally, unusual circumstances may justify a flexible interpretation of the word “forthwith” if they are related to the use of the device or the reliability of the result. However, unusual circumstances cannot arise from budgetary considerations or considerations of practical efficiency, such as the supplying of ASDs to police forces or the time needed to train officers to use them. The absence of a device at the scene at the time the demand is made is not in itself an unusual circumstance. This SCC decision dealt with the interpretation of “forthwith” under the previous version of the Criminal Code (section 254(2)). In 2018, Parliament enacted section 320.27 of the Code which replaced that language with the term “immediately”. The intent behind this change was to adopt clearer language and not change the law. The Court in Breault addressed the applicability of their interpretation of “forthwith” with the newer section of the Code. At paragraphs 38 to 44 of their decision, the Court analyzed and confirmed “that the guidance provided by this judgment on the interpretation of the immediacy requirement in s. 254(2)(b) Cr. C. applies to the interpretation of the word “immediately” in s. 320.27(1)(b) Cr. C.” . . . . . If you have been charged with an Impaired driving or a DUI related offence, please contact David Schell at Devry Smith Frank LLP to discuss any questions and your options at 416 446-5096 or david.schell@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.” By Fauzan SiddiquiBlog, Criminal LawMay 1, 2023July 5, 2023
Proposed Provincial Planning Statement 2023: A Summary On April 6, 2023, the Ontario government released the proposed Provincial Planning Statement 2023 (“PPS”) which is intended to simplify and integrate existing policies to achieve housing objectives while providing tools for municipalities to deliver on housing objectives. The PPS recognizes that the objectives for achieving housing outcomes are not universal and provides a more flexible approach for municipalities to adapt and implement policies based on the municipality’s requirements. The following are highlights of the changes within the proposed PPS: Building Homes, Sustaining Strong and Competitive Communities The proposed PPS has removed the requirement that municipalities meet specific intensification and density targets to accommodate forecasted growth, with the exception of density targets for major transit station areas in large and fast-growing municipalities. Instead of this requirement, municipalities are encouraged to establish density targets that are appropriate for the municipality’s needs. The proposed PPS identified 29 municipalities that are required to identify and focus growth in strategic growth areas, including identifying an appropriate minimum density target and planning to meet minimum density targets for major transit station areas. The proposed PPS further provides broader permissions to expand residential housing to facilitate further development, including converting existing commercial and institutional buildings for residential use, developing and introducing housing options within previously developed areas, and redeveloping areas to increase the number of residential units. In addition to increasing the number of residential units, the proposed PPS provides that planning authorities shall promote economic development and competitiveness by providing an appropriate mix of employment, institutional, and broader mixed uses to meet the long-term needs of residents, including identifying sites suitable for building infrastructure for employment purposes. The proposed PPS permits multi-lot residential development on rural lands where appropriate sewage and water servicing can be provided and removes the test for when infrastructure is proposed to be expanded for rural development, providing greater flexibility for private servicing – municipalities must consider “locally appropriate” rural characteristics when directing development in rural settlement areas. Lastly, municipalities must engage in planning with an eye towards reducing greenhouse gas emissions and to prepare for the impacts of climate change through approaches that support and incorporate climate change considerations in developing infrastructure. Employment The proposed PPS further overhauls the employment protection scheme in Ontario as it actively promotes mixed-use development where the mix of uses are compatible, and protects and preserves areas that are largely industrial and manufacturing areas. The definition of employment areas prohibit institutional uses and commercial uses unless those commercial uses are associated with primary employment use which include manufacturing uses, research and development uses. As such, the change to the definition of employment areas draws a clear distinction between commercial uses, institutional uses, and retail/office uses, that are not associated with primary employment. The proposed PPS further clarifies the test for employment conversion requests and removes the requirement for municipal comprehensive review. The new test outlines that planning authorities may remove lands from employment areas only where it is demonstrated that: There is an identified need for the removal and the land is not required for employment area uses over the long term; The proposed uses would not negatively impact the overall viability of the employment area by avoiding, or where avoidance is not possible, minimizing and mitigating potential impacts to existing or planned employment area uses in accordance with policy 3.5; and maintaining access to major good movement facilities and corridors; and Existing or planned infrastructure and public service facilities are available to accommodate the proposed uses. Lastly, the proposed PPS suggests selecting provincially significant employment zones or portions of provincially significant employment zones to protect employment uses. Settlement Area Expansion The proposed PPS removes the need for a municipal comprehensive review and allows settlement area expansion as long as policy tests are met. In addition to removing references to a municipal comprehensive review, the municipality must be able to demonstrate that: that there is sufficient capacity in existing or planned infrastructure and public service facilities; the applicable lands do not compromise specialty crop areas; the new or expanded settlement area complies with the minimum distance separation formulae; impacts on agricultural lands and operations that are close to the settlement area are avoided, or minimized and mitigated if avoidance is not possible; the new or expanded settlement area provides for the phased progression of urban development. Land Use Compatibility The proposed PPS provides enhanced protections for industrial and manufacturing uses as well as other major facilities from encroachment on sensitive land uses and revises the test planning authorities must consider where it is not possible to avoid adverse effects from odour, noise, and other contaminants. The proposed PPS also removes any reference to adverse effects to the proposed sensitive land use being minimized and mitigated, revealing a greater focus on protecting longer-term viability of industrial and manufacturing uses, as well as major facilities. Agriculture The proposed PPS would no longer require municipalities to use the provincially mapped Agricultural System in developing lands within prime agricultural areas. Municipalities will still be required to designate and protect prime agricultural areas for long-term use but it will be easier to establish more housing within prime agricultural lands. The policy would also allow principal dwellings associated with agricultural operations to be located within prime agricultural areas as an agricultural use and permit residential lot creation in these areas in accordance with provincial guidelines for “new residential lots created from a lot or parcel of land that existed on January 1, 2023”. Lastly, the proposed PPS would require an agricultural impact assessment to avoid impacts from any new or expanding non-agricultural uses on surrounding agricultural lands and operations. Natural Heritage System/Management of Resources The proposed PPS provides that planning authorities prioritize protecting or restoring the quality and quantity of resources including water, minerals, as well as cultural heritage and archaeological sites from land alterations. The development of new housing and site alteration should be limited to surface water features and sensitive ground water features. The proposed PPS favours balancing the use and management of natural resources with attention to appropriate housing supply and considers the mitigating effects of vegetation and green infrastructure in developing housing supply. As noted above, the proposed PPS has the potential to change the planning regime in Ontario. To better understand the provisions within the proposed PPS, please contact one of the following municipal and development lawyers today! Larry W. Keown-larry.keown@devrylaw.ca, 416-446-5815 Marc Kemerer–marc.kemerer@devrylaw.ca, 416-446-3329 David S. White–david.white@devrylaw.ca, 249-888-6633 “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.” This blog was co-authored by student-at-law Abby Leung. By Fauzan SiddiquiBlog, Real EstateApril 19, 2023June 10, 2023
Immigrant Entrepreneurs: What to Know About Canada’s Start-up Visa Program Entrepreneurs looking to start a business in Canada can turn to Canada’s Start-up Visa Program as an opportunity to obtain permanent residence in Canada through business immigration. Canada’s Start-Up Visa Program targets immigrant entrepreneurs with the skills and potential to build businesses that are innovative, create jobs for Canadians, and are competitive on a global scale. Here is what you need to know about Canada’s Start-up Visa Program: Eligibility In order to be eligible for a Canadian start-up visa, applicants must meet four requirements: they must (1) have a qualifying business, (2) have a letter of support from a designated organization, (3) meet the language requirements, and (4) have sufficient settlement funds.[1] The Province of Quebec is in charge of its own business immigration program. A qualifying business means that each applicant holds at least 10% of the voting rights attached to all outstanding shares of the company and together with the designated organization, they jointly hold more than 50% of the total voting rights attached to all outstanding shares of the company. At the time that the applicant receives permanent residence, the applicant must provide active and ongoing management of the business from within Canada, must ensure that an essential part of the operations of the business happens in Canada, and incorporate the business in Canada.[2] A letter of support from a designated organization requires endorsement from a business group that has been approved by the federal government to invest in or support possible start-ups. A designated organization can include a venture capital fund, angel investor group, or a business incubator. A list of designated organizations can be found here.[3] All applicants must take a language test from an approved agency and meet the minimum level of the Canadian Language Benchmark 5 in either English or French in all of these areas: speaking, reading, listening, and writing.[4] Applicants must also demonstrate that they have enough funds to support themselves and their dependents after arriving in Canada. The amount needed to demonstrate proof of financial support is based on the size of the applicant’s family and can be found here.[5] Benefits of the Start-Up Visa Program The Start-up Visa Program allows Canada to attract and retain high potential entrepreneurs who have an innovative and scalable business. The economic benefits of hosting a successful start-up can lead to job creation, training and cultural advantages for Canada. For prospective entrepreneurs, the program allows applicants a direct pathway for permanent residence in Canada and is open to all nationalities. The program does not limit the applicant on what type of business he or she can conduct in Canada and there is no net worth requirement. Determining the potential of a start-up can be challenging. However, through approved business partners, immigrant entrepreneurs can access funding, professional contacts, and mentoring to set them on a path to success. Applicants also have the opportunity to apply for a work permit while the application is in process. A start up visa may be suitable for entrepreneurs who are able to secure the capital and support from designated organizations to establish and grow their business in Canada. For other migrants looking to work in Canada, there are other temporary and permanent immigration programs that provide an opportunity to participate in the Canadian labour market and gain professional experience in Canada. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. For more information about immigration and your specific circumstances, please contact a lawyer in the Immigration Law Group. This blog was co-authored by student-at-law, Abby Leung [1] https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/start-visa/eligibility.html [2] https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/start-visa/eligibility.html [3] https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/start-visa/designated-organizations.html [4] https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/start-visa/eligibility.html [5] https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/start-visa/eligibility.html By Fauzan SiddiquiBlog, ImmigrationApril 4, 2023August 11, 2023
What Parents Need to Know About Private Schools and Education Law – Before Signing Their Kids Up In our education law practice, around half of our cases are on behalf of parents against private schools because the school did not meet the parent’s expectations, told a child to leave without good reason, or did not meet their child’s needs. This post is not intended to take a stand against private schools. Half of our cases on behalf of parents are against public schools. However, it is often the private school parents, not the public school ones, who have large misconceptions about how Ontario’s Education Act, or Education Law more broadly, apply to the schools their children attend. The reality is that Ontario Private Schools do not have the same curriculum, rules or legally imposed standards that public schools do. The Ontario Government allows a lot more choice when parents choose private education. That is precisely the reason why parents pick Ontario Private Schools. Some parents do not want their kids taking sexual education classes, some don’t like the anti-bullying component that is mandatory in public schools, some parents what subjects taught with a religious focus, some parents want schools that use permissible corporal punishment or other types of discipline that are not available in public schools, some parents don’t want their kids being taught alongside kids that have special needs or are otherwise disadvantaged, some parents want teachers with qualifications that are different from the qualifications required by the Ontario College of Teachers or want their children to have teachers that are not confined by the standards of practice and ethics imposed by that body. Choosing Private School is About Opting Out of Government Standards and Requirements In choosing a private school, parents are choosing an education that is very different from that provided by public schools. This post is not about whether public or private schools are better because that largely depends on the specific school in either system. But, what many parents do not understand is that while it is NOT true that the Education Act does not apply to private schools, more than 95% of the Education Act does not apply. Further, the Ministry of Education does not regulate, license, or otherwise oversee the day-today-operation of private schools. The Ministry does not even inspect elementary schools or high schools that do not grant Ontario Secondary School Diplomas, even if those schools provide other diplomas such as the IB program. The Ministry of Education provides a LOT of direction to public schools about how they will operate. It does this through the Education Act, Government Regulations, and Policy and Procedure Memoranda that all set out exactly how public schools must do things. In most, if not all, circumstances, those directions are rooted in the latest research into best teaching practices. In several areas, the expectations placed on public schools are considered to be the best in the world. But private schools are not required to follow them. To be clear, private schools do NOT have to follow the direction of the Ministry of Education in areas such as: Discipline – including suspensions, expulsions, or other forms of discipline Removing a child from his or her school Addressing the special needs of students Anti-bullying programs Specific curriculum content Student evaluation or testing procedures Communication with parents Participation in school activities Codes of conduct or dress code Vaccination or other health requirements or Record keeping Teacher or principal qualifications If your child needs or would benefit from the specific standards or procedures set by the Ministry of Education, then you may want to look at public schools and even what you have to get your child into a specific public school. Many private schools boast of having standards that exceed the requirements expected of public schools. But, there is no legislative nor government requirement that a private school even meet the standards in public schools. The Ontario Government is not going to step in to ensure that a child is being properly educated or treated at a private school and will look at the curriculum content only if the school wants to give the student an Ontario Secondary School Diploma. Private School Standards Are Set Privately Between Parents and the School That does not mean there are no legal requirements placed on private schools, just that those legal requirements do not come from the government. Instead, they come from the contract that the parents sign with the school. Like with End User Licence Agreements on apps and phones, parents tend to skip over these contracts assuming they have some form of standard terms, or that they are related only to the payment of fees or other unimportant matters. But, those contracts set out what education parents can expect their children to receive and how the school will treat those children. Private Schools Set Their Own Rules for Kicking Kids Out Looking at specifics, one area where private school parents are often caught off guard is about private schools kicking kids out. There are a lot of rules that public schools have to follow if they want to kick a kid out and public schools cannot just tell a kid not to come to school anymore. Private schools don’t have to follow any of those rules. Private schools can force a student to leave based on what is set out in the contract. Most of the established private schools have contracts that essentially say “We can permanently remove any student from the school at any time, for any reason and we do not have to have a hearing or listen to the parents at all and we do not have to refund any portion of the tuition.” Parents usually just sign that contract without thinking about it. Some schools set out a procedure, or say they will mirror the requirements placed on public schools by the Education Act, or that students can only be ejected for violating the code of conduct. However, most private schools do not have those sorts of terms in their contracts with parents and instead have contracts that allow them complete discretion as to when to remove students. Most private schools can even remove a student who is a victim of bullying or other acts because the victim student “does not fit in” or the aggressor students are more desirable. Almost all private schools reserve the right not to readmit students for future academic years. That means they can literally say in June that they don’t want to see a student anymore in September, although that can be difficult if the school and parents have signed a new contract earlier in the year. If parents do not like this possibility, they have to carefully read the contract and make sure they don’t enroll at a school where the contract will allow things to happen that they don’t like. And to be clear, our firm has done lots of cases where parents do not believe their child would be removed from the school. This can be because they went to the school themselves, or they have other children who are at the school or were at the school, or they cannot foresee any situation where a school would not want their child, or even because they have given the school a LOT of money. We have seen lots of cases where parents are absolutely shocked to learn that their child is no longer welcome at a private school and the school is using the terms of the contract against them. When parents come to see us, we do have some remedies under contract law or human rights law and some other strategies we can try to fix the situation. You can make an appointment by calling 416-446-5847. But, the stronger the contract, the more difficult – AND EXPENSIVE – it will be to try to fix things. So, parents should review the contract carefully – and usually the Code of Conduct that is incorporated into the contract – to make sure the contract meets their expectations and will not come back to haunt them if things go sour. Admission Processes And Decisions Are Made By the School We do understand that parents are often just glad that their child got accepted into a private school as it can be very competitive to get in and that it can be embarrassing when a child is not accepted into a private school, particularly when it seems their child is not “up to snuff” or may have unique needs that are keeping them out. Private schools are private businesses so they can choose who they serve and who they do not – unless the decision violates the Ontario Human Rights Code. But many private schools have complex multi-stage admission processes that allow them to deny admission for reasons that are not related to a student’s traits that would violate the Human Rights Code. The last thing that most parents want to do is start questioning the terms of the contract when the school might just turn around and offer the place to another child. Still, we see many parents who are not happy with a private school and where that school failed to meet their expectations. Parents do need to carefully read that contract. If what it promises is different from what parents expect, they need to consider whether that school is the right one. It can be difficult to fight what a school is doing, even when kicking a student out if the school can point to their contract and say it is allowed under the contract, or our contract doesn’t require what the parents expect. Grades and Academic Discipline Giving out grades is one of the very few areas where the Ministry of Education does have expectations of private schools, but not in a way that really assists parents. Private schools are required to have a policy about how they will communicate student achievement to parents. But, how private schools communicate student achievement is entirely up to the private school. They can use the Ministry of Education standard report cards, but they do not have to do so. They do not even have to use formal grades. However, to grant a credit towards a course that will lead to an Ontario Secondary School Diploma, private schools must show that their evaluation of students is based on evidence of achievement of the provincial curriculum expectations, is conducted several times during a course and uses several methods for evaluating the student, as well as meeting other criteria. When it comes to challenging whether an evaluation of a student was fair or accurate, there is no direct way to challenge a private school’s methodology. Many private school contracts specifically state that parents cannot, and will not, do that. Doing so will be, at best, difficult. Similarly, there are no direct ways to challenge a school’s finding that a private school has acted with academic dishonesty, or the method used in the investigation. Where a school makes such a finding and the imposes consequences are consistent with a Code of Conduct that has been incorporated into the contract with the parents, there is little that private school parents can do. If the consequences are severe for the student, they may want to consult with a education lawyer to see if there are any unusual or creative legal solutions available. One course of action that might be available where the school imposed a grade or discipline that did not take into account a student’s special needs, is to pursue a remedy based on human rights grounds. Private Schools Usually Do Have To Accommodate Special Needs Ontario public schools have a refined process for identifying and providing assistance to kids. While, in most circumstances, private schools cannot refuse to admit a student because that student has special needs, they often find other reasons to refuse admission. However, once a student is in a private school, that school has to accommodate that child’s special needs to the point where it will cause undue hardship. For very small, usually religious based private schools, that are not-for-profits, and that charge very little for tuition and do not have much in the way of resources, the school may legitimately not be able to provide much accommodation for special needs. But larger schools can, and must, provide accommodation for student’s special needs. People cannot contract out of the Ontario Human Rights Code, so the contract is not a factor in those circumstances. If a private school student has a disability or needs some other type of special treatment or services, the private school cannot refuse to provide those accommodations if it is reasonably able to provide them. Private schools cannot refuse to continue to reach a student because that student has a special need that the school could reasonably accommodate. While we often hear private schools say “we don’t do things that way”, or “our standards do not allow us to provide accommodation”, the law says differently. Any parent faced with that sort of attitude should get advice from an education lawyer. Bullying – It’s Up To Private Schools What To Do, If Anything One thing that can actually CREATE special needs in a student is repeated bullying. Bullying can cause lots of long lasting serious problems and is rarely character building for the victim. It often leads to mental health problems that negatively impact a student’s ability to learn and the benefit of attending a private school. The Education Act and the Ministry of Education place a lot of legal obligations on public schools to prevent and address bullying. Those measures are based on the latest research into bullying and its effects. There is nothing in the legislation or from the Ministry of Education that requires private schools to do anything about bullying. Again, that is an intentional decision by government because some parents do not want their children exposed to anti-bullying programs and believe that bullying can be good for kids. They can chose to send their children to schools that allows or encourages bullying behaviour, hazing, peers teaching each other lessons, or other similar behaviour. Other private schools have very strict anti-bullying measures, some of which are modeled on what is required in public schools. Again, to a point, what a private school is legally required to do about bullying is set out in the contract with parents – to a point. There can be legal consequences for a private school that allows bullying. When a school fails to supervise students properly, it can be liable for damages for mental or physical harm caused to a student. The law does not permit students, or the student’s parents, to consent to the student being seriously harmed. So, a school that says parents agreed to let their child be bullied will not be successful with that position in court. In addition, many types of bullying, anything that is based on disability, race, ethnic origin, family status, sexual orientation, gender or similar traits is a violation of the Ontario Human Rights Code. So, there can be penalties for institutions when bullying is also bigoted. Since bullying can have a lot of serious negative repercussions, it can lead to mental or physical disabilities. Once a child has such disabilities, the child’s school is required to accommodate those challenges to the point of undue hardship. When those disabilities were caused by events at school, it is really difficult for a school to get away with saying that fixing a problem that it, in part, caused, will be too hard. Private Schools Can Hire Whatever Teachers They Like, Regardless of Qualifications Sometimes children run into trouble at private schools because one or more of their teachers or principals do not have any teaching qualifications and so do not know how to address certain educational situations or issues. Again, the Ontario Government made a policy decision to allow a broader range of qualifications than are required to teach in the public system, so there are no minimum qualifications for private school educators or administrators. In addition, private school teachers do not have to be members of the Ontario College of Teachers – in fact they can’t be if they don’t have the qualifications to get a teacher’s license. If a private school teacher is not a member of the college of teachers, there is no body to complain to about the competence of ethics of that private school teacher. Some private schools do require their teachers to be members of the college of teachers. But, the private schools themselves are not required to use only licensed teachers unless their contract with their parents says so. Conclusion To summarize, it is important for parents to read the contract with a private school, which often incorporates a code of conduct and other documents or policies, before signing their child up to attend that school. Even if they feel they have no choice but to send their child to that private school, that contract tells them what they can expect, including the standards (if any) that will be applied to their child’s education. There are no mandatory government standards for how children will be educated in private schools in Ontario, or what they quality of that education will be. Parents can only hold a price school to the contract, and perhaps human rights legislation. If the school does not violate either of those, but the school does not meet the parents’ expectations, there will not be any government intervention and there may few legal options – even if a child suddenly finds him or herself without a private school to attend. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.” By Fauzan SiddiquiBlog, Education Law, UncategorizedMarch 24, 2023July 5, 2023