Challenging the Safe Streets Act By: Nicolas Di Nardo A law created in 1999 known as the Safe Streets Act is being challenged by the Fair Change Community Legal Clinic on the basis that it discriminates against people with mental health and addiction issues. Leading this dispute is Gerry Williams, along with the Fair Change Community Legal Clinic. Williams shares his experiences of being homeless and the amount of fines he was given over 9 years while trying to survive. Since then, he has overcome homelessness, has a job and a place to live. Gerry suffered from alcoholism and undiagnosed mental health issues, but is a very different person today. Before he was able to get the help he needed to thrive, he suffered. He managed to be handed $65,000 in fines over 9 years ago while homeless, all of which were given to him through provincial offences and convictions. These included: Loitering Littering Drinking in public Trespassing Gerry determined that approximately $10,000 worth of his tickets were issued through the Safe Streets Act while he was panhandling to survive. This law was intended to limit the aggressive behaviour brought on by people asking for money on the street, which also included squeegeeing. Williams is now part of a constitutional challenge to the Act, which was filed by the legal clinic last Wednesday. Fair Change has spoken up about the issues with this law, stating it is: Impacting people with mental health and addiction issues Costing the public $2 million in court fees and paperwork Fines under the act will likely never be paid Ruined credit scores, limiting opportunity for housing, drivers license, or work after being convicted under the Act Hurts people that are already vulnerable Increases homelessness Poverty remains the most pressing human rights issue in Canada, however, Joanna Nefs says the law is not doing anything to help fix that. Laws that are criminalizing people in poverty does not line up with the goal to end poverty, or the Human Rights Code, which Renu Mandhane, chief Commissioner for the Ontario Human Rights Commission is making reference to the Safe Streets Act as one of those laws. Fair Change is looking for the law to be repealed rather than fighting it, and this is not the first time. MPP Cheri DiNovo tabled private members’ bills in 2015 and 2016 for the Act to be repealed. Please check back to our blog for more update and developments to this story. Devry Smith Frank LLP is a full service law firm located in Don Mills. If you require representation or have any questions, please contact Devry Smith Frank LLP today. You may contact one of the many experienced lawyers on our website or call us directly at 416-449-1400. “This article is intended to inform and entertain. 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.” By Fauzan SiddiquiBlog, Human Rights LawJune 26, 2017June 22, 2020
Minimum Wage Embedded In New Law By: Nicolas Di Nardo With the new minimum wage increase set to become $15 an hour in 2019, it would require the Progressive Conservatives to change labour laws in order to get rid of it. The new wage increase will take effect six months after the June 2018 election. The Liberals have embedded it in the new Fair Workplaces, Better Jobs Act which is still to be studied by all-parties this summer, which is expected to pass in the fall. For more information on the details of this Act, please read our previous posts: Is A $15 Minimum Wage, More Unionization and a Minimum 3 Week Vacation On the Horizon? Update: Ontario Liberals Announce Changes to Labour Law—And a $15 Minimum Wage The Act looks to increase minimum wage to $14 an hour on January 1st, and to $15 an hour on January 1, 2019. It is expected that the Liberals will campaign on this Act as well as the proposed pharmacare plan which is also going to launch on January 1st. Devry Smith Frank LLP is a full service law firm located in Don Mills. If you require representation or have any questions, please contact Devry Smith Frank LLP today. You may contact one of the many experienced lawyers on our website or call us directly at 416-449-1400. “This article is intended to inform and entertain. 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.” By Fauzan SiddiquiBlog, Employment Law, Labour LawJune 26, 2017June 22, 2020
Requiring Customers to Come to Stores Has Been Deemed Discriminatory By: Michelle Cook, Summer Law Student Could companies that require their customers to come into their physical stores be guilty of discrimination? A human rights adjudicator seems to think so. In Mills v Bell Mobility Inc, Canadian Human Rights Tribunal member Edward Lustig awarded $10,000 plus interest in compensation for Ms. Mills’ pain and suffering as a result of being required to attend at a Bell store. The Tribunal found that a phone activation policy that required customers to physically present themselves in the company’s stores, thereby endangering the health of some disabled persons, amounted to discrimination based on disability, in contravention of the Canadian Human Rights Act. Bell, one of the many companies that has such a policy, could not justify why disabled persons could not be accommodated through other methods of communication, such as Skype or Facetime. Ms. Mills was disabled as a result of cancer in late 2013 and a stroke that nearly killed her in 2014. Ms. Mills was bedridden, extremely weak and partially paralyzed. Her physician has instructed her to stay home, unless an emergency required her to leave. Her son had made attempts to activate her phone on her behalf, including an offer to come to the store with all Ms. Mills’ identification documents, including a valid Power of Attorney. However, Bell stood by their in-person policy and took the position that that its activation standards policy was necessary in order to combat identity fraud. Ms. Mills eventually relented and attended at a store to have her phone activated. She then commenced a human rights complaint. Interestingly, while she was ultimately successful in getting an award for pain and suffering, the CHRT member refused to find that Bell had committed reckless or wilful discrimination, citing its reputation as a company that “usually cares about its customers, including disabled Canadians,” especially its efforts to combat mental health stigma. For more commentary see: Law Times News Devry Smith Frank LLP is a full service law firm located in Don Mills. If you require representation or have any questions, please contact Devry Smith Frank LLP today. You may contact one of the many experienced lawyers on our website or call us directly at 416-449-1400. “This article is intended to inform and entertain. 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.” By Fauzan SiddiquiBlog, Human Rights LawJune 26, 2017June 22, 2020
The Fight Against Solitary Confinement By: Katelyn Bell, Summer Law Student The issue of solitary confinement has been long-standing in Canada. Solitary confinement is meant to be ordered on a temporary basis, not on an indefinite one. In recent years, the issue has come to the forefront, after several Canadian inmates committed suicide while in solitary. Ten years ago, Ashley Smith, a 19 year-old inmate in solitary, strangled herself to death in her cell while prison guards watched and videotaped it. Smith spent a total of 1,047 days in solitary confinement, and had been placed on high suicide watch. Unquestionably, Smith’s lengthy stay in solitary was a contributing factor in her suicide. Calls to limit the segregation of prisoners grew much louder after Smith’s 2007 death, but unfortunately, the problem has persisted. Last fall, a prison guard’s tip-off to Ontario’s chief human-rights commissioner revealed that Adam Capay – a 23 year old inmate – had spent over four years in solitary confinement, totalling 1,636 days: segregation analogous to torture. Without question, the rights of those individuals confined to a single cell for such long periods of times violates their rights under the Canadian Charter of Rights and Freedoms. Under the Charter, Canadians have the right to life, liberty and security of the person, the right against unfair detainment, and the right to be free from cruel and unusual punishment. In British Columbia, a trial seeking to challenge Canada’s solitary confinement prison policies as “cruel and unusual punishment” is scheduled to begin on July 4, 2017. However, the Liberals are looking to halt this trial. Why? Because the government is finally working on a solution to the inappropriate use of segregation. An application filed with the Supreme Court of British Columbia on June 20, 2017 argues that proceeding with the July trial would be a waste of court resources, because the concerns about prolonged segregation are being addressed in new legislation – Bill C-56. So, how are they being addressed? The legislation introduced by the Liberals limits the amount of time federal inmates can be held in segregation cells. If Bill C-56 is passed, inmates would not be allowed to be held more than 15 days in solitary. But before the 15-day limit, Correctional Service Canada will have an 18-month transition period, during which time the cap will be set at 21 days. These proposed time limits will of course be subject to safety and security requirements, and also, it must be ensured that other reasonable alternatives are available. But 15 days is a long time… Most of us have experienced “one-of-those-days,” where whether at work, home, or anywhere, the day seems to go on forever. Imagine 15 of those. In a row. Although the new legislation will limit inappropriate segregation, 15 days still seems to be far too long to be in solitary. Again, the analogy can be drawn to torture. While some argue to lessen the allotment from 15 to 5, others demand a total ban on segregation, calling it cruel and unusual punishment, and thereby a violation of the Charter. (see s. 12) Ultimately, the bill is a step in the right direction. But because the bill has only received its first reading, there is no guarantee that the bill will be enacted. And if it is enacted, its form remains uncertain, as Parliament may choose to amend the legislation. For this reason, those behind the lawsuit – the John Howard Society and the B.C. Civil Liberties Association – want the July 4 trial to proceed. The government’s application to adjourn the trial was heard on Friday in Vancouver. Justice Peter Leask reserved his decision, and the parties are due back in court tomorrow. Devry Smith Frank LLP is a full-service law firm located in Don Mills. If you require representation or have any questions, please contact Devry Smith Frank LLP today. You may contact one of the many experienced lawyers on our website or call us directly at 416-449-1400. “This article is intended to inform and entertain. 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.” By Fauzan SiddiquiBlog, Criminal Law, Human Rights LawJune 26, 2017June 22, 2020
Reasons Why A Starter Home is No Longer an Option By: Nicolas Di Nardo Toronto’s chief planner Jennifer Keesmaat says you won’t be able to have the traditional starter home that previous generations have had in the city of Toronto anymore. With current prices, increased condo and apartment developments, and fewer single-family homes being built, the idea of a starter home with a patch of grass is starting to disappear. As stated in previous blogs about: Affordable Housing Should Be a High Priority for the Next Provincial Election Toronto Must Figure Out Housing Solutions or Risk Losing Top Young Talent Toronto Housing Solution: Laneway Suites Affluent Boomers are Taking Pressure from ‘YIMBY’ Groups in the GTA All expectations must now change, as Toronto’s housing landscape takes a turn. Jennifer has even encouraged her own children to imagine raising a family in an apartment, rather than a house. From previous research conducted, as mentioned in our previous blog, housing preferences for the next set of homebuyers is out of sync with what is currently available, as well as what home-buyers are capable of affording. With the statistics listed in the above blog post: In April, Toronto’s detached re-sale homes hit $1.6 million on average. To make matters worse, young professionals aged 18-39 say: 32% plan to buy a home in the next year 58% say high prices are why they won’t buy a house in the next year 19% will stay in their current home 17% want a townhouse 51% want a detached house 13% want a semi-detached 17% already own a home It makes housing a much more important issue when you compare the above stats with the single statistic that, 83 per cent of housing built from 2011 to 2016 in Toronto consisted of midrise and high-rise apartments. Jennifer went before the Toronto Region Board of Trade (TRBOT) with all of her concerns, and even suggested that condo developers should reconsider the amenities they put into their buildings. For example: Replace pools with gymnasiums Introduce craft and media rooms As a result, there will be a focus on young children and provide a more welcoming environment for families. From all of these developments in the Toronto real estate market, young professionals are the ones most effected. As mentioned in another blog post and in Jennifer’s speech, young professionals are fighting against foreign investment, rising prices, and the fact that the housing they want is either occupied or sought after by other parties. To make matters worse, millennials are faced with these obstacles while on an entry level salary or position, pushing them further and further out of the market and the city. Hence, the push for laneway suites and town-homes. These two solutions could help increase the housing options in the city while using existing structures and limiting the development of new communities. This idea was discussed following Jenn’s speech and was also a topic for one of our previous blogs and it is believed that if this is implemented, it will add “gentle density” to areas around the city. Considering 62 per cent of land in the city is zoned for single family homes and Toronto has 300 kilometres of laneways, there is space to work with for the development of town-homes and laneway suites. The Fair Housing policy, along with the involvement from developers, the city, other levels of government, and public support, Toronto’s housing will eventually become affordable and provide an abundance of housing options for all levels of income and preference. Once the YIMBYs can outweigh the influence of the NIMBYs, everything will fall in place for Torontonians. At least, that’s the hope. If you are in need of a real estate lawyer, please visit our website and contact one of our real estate lawyers today. If you are in need of any other services or have any questions, you may also contact our Toronto office directly at 416-449-1400. “This article is intended to inform and entertain. 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.” By Fauzan SiddiquiBlog, Real EstateJune 23, 2017June 22, 2020
Income Earned by Wrongfully Dismissed Employees No Longer Automatically Deducted Under the Duty to Mitigate The duty of wrongfully dismissed employees to mitigate their damages is no longer as clear-cut as it once was. Notice periods are seen as an amount of time, or a level of compensation, to assist a dismissed employee to find comparable work. Previously, lawyers made the assumption that any income gained by an employee during an employment notice period was to be automatically deducted from the amount an employee would be entitled to, due to the fact that the employee successfully mitigated the damages that their previous employer was responsible for. However, in Brake v PJ-M2R Restaurant Inc, the Court of Appeal declined to lessen the wrongful dismissal damages an employee was entitled to because of income earned from other employment during the notice period. The employee, Esther Blake, was awarded more than $104,000 for a 20-month notice period due to wrongful dismissal. The defendant, PJ-M2R Restaurant Inc, is a holding company that owns franchised McDonald’s in the Ottawa area. Esther worked as a manager at one of the McDonald’s locations for 25 years until she was wrongfully dismissed. While working at McDonald’s, Esther also worked a part-time job at Sobey’s as a cashier. When Esther was dismissed from McDonald’s, she continued to work at Sobey’s as she did before but expanded her hours there as she was no longer working full-time at McDonald’s. The Court of Appeal declined to see the Sobey’s employment as income from mitigation as she would have continued to work there part-time regardless of her status at McDonald’s. Also of note is Court of Appeal Justice Kathryn Feldman’s concurring decision in this case. The lower court judge determined that $600 that Esther received from Home Depot during the notice period should also not be deducted as it was “so substantially inferior” to her managerial position at McDonald’s (para 24). While Justice Feldman did not use the same wording, she reiterated that employees are entitled to turn down jobs that are not comparable, without having the potential income from that job deducted for a failure to mitigate losses. Using that reasoning, an employee should not be penalized when they choose to accept the job that they were entitled to turn down. Justice Phillips of the Court of Appeal did not deduct this income either but stated it was due to the lack of clarity regarding the income. The clear implication of this case is that employment lawyers will need to prove not only the amount of income an employee earned during the notice period but the nature of the work that income came from. With a changing economy and the rise of non-standard work, it will be interesting to see how the Court of Appeal treats mitigation efforts as comparable standard employment becomes more elusive. Devry Smith Frank LLP is a full-service law firm that has experienced lawyers within our employee and employment law group. If you are in need of representation, please contact one of our lawyers today or call us directly at 416-449-1400. “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.” By Fauzan SiddiquiBlog, Employment LawJune 22, 2017June 24, 2020
Affluent Boomers are Taking Pressure from ‘YIMBY’ Groups in the GTA By: Nicolas Di Nardo During the recent Ontario Housing Summit the main focus was on millennials and home ownership, and the consensus of the Summit was that there is a need for more affordable housing supply. Some of the points that were made are: Boomers are restricting access to prime property Boomers would like to move out, but don’t see any suitable alternatives in their area Trade down houses (townhomes, midrise condos, duplexes) are not zoned in desired area “Missing middle” or those defined as trade down houses for boomers, starter homes for millennials, are not available NIMBYs, “not in my backyard” homeowners oppose development of such buildings in single-family home neighbourhoods However, there is a rise in YIMBYs in Toronto. YIMBYs are the supporters of affordable housing, or as the name goes, “yes in my backyard” homeowners. Toronto’s YIMBY group is known as Housing Matters, they are a group of activists. They are growing fast and hope to bring change to Toronto’s affordable housing, however, they must take more action than just utilizing social media to get their message across, they must approach the city and other groups with hard facts and evidence that affordable housing will be able to benefit not only the city, but the neighbourhoods they will be in. Until the city can determine what to do, it is a waiting game. For now, we’ll have to see what the government’s current measures to cool down the market will do, as it seems to have some impact on the housing market in Toronto already. If you are in need of a real estate lawyer, please visit our website and contact one of our real estate lawyers today. If you are in need of any other services or have any questions, you may also contact our Toronto office directly at 416-449-1400. “This article is intended to inform and entertain. 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.” By Fauzan SiddiquiBlog, Real EstateJune 21, 2017June 22, 2020
Hockey Union alleges the OHL broke Labour Laws By: Nicolas Di Nardo Back in 2014, a class-action lawsuit was filed against the Canadian Hockey League (CHL) over wages. It claimed the league was breaching minimum wage laws. In summary, they are seeking $180 million in outstanding wages, vacation, holiday and overtime pay and employer contributions for thousands of players between 2012 and 2014. It is still ongoing and has had some recent developments. Now, the CHLPA has filed with the Ontario Labour Relations Board. The Canadian Hockey League Players’ Association (CHLPA) attempted to unionize its major junior players within the Ontario Hockey League (OHL) promising minimum wage payment. This is a result of the OHL commissioner stating that the players are not entitled to minimum wage because they are defined as “amateur athletes”, however, union officials say that provincial labour laws should apply to for-profit hockey clubs, seeing as they generate profit from the work of their players. Currently, the players within the OHL do get paid, however, it is in the form of stipends (less than $500 a month) with benefits such as lodging, food and gear, but have never been paid in accordance with minimum wage legislation. There are a number of exhibits before the court, such as administrative memos to clubs advising them to not notify the CRA, and instructing teams to disregard the CRA’s classification of OHL players as employees. Additional exhibits also include a number of player contracts with changes to the language stating the relationship between players and their clubs. The current application to the labour board requests that the CHLPA become the bargaining agent for players in the OHL, or damages of $175,000 for union drive expenses. For more information on this, please click here to read the original article. Devry Smith Frank LLP is a full service law firm that has a very experienced group of lawyers within our employee and labour law groups. If you are in need of representation, please contact one of our lawyers today or call us directly at 416-449-1400. “This article is intended to inform and entertain. 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.” By Fauzan SiddiquiBlog, Employment Law, Labour LawJune 21, 2017June 22, 2020
Bill C-16: Proud to Extend Protections to Transgender and Other Gender-Diverse Persons June is Pride Month, when we celebrate sexual diversity and gender variance in the context of gains made by the Lesbian Gay Bisexual and Transgender (LGBT) communities. It is thus fitting that the Canadian Senate last week passed Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code to protect gender identity and gender expression. Gender identity is broadly defined as one’s personal experience of their own sex, their internal sense of being male, female, a combination thereof or neither. Gender expression is the public expression of that identity, through markers such as clothing, speech and body language. Now that better acceptance and legal protection has been secured, after years of advocacy, for the LGB communities, issues facing the T(ransgender) community have moved to the fore. Issues of gender identity and expression have recently featured prominently in the news, particularly south of the border with the introduction of “bathroom bills” that restrict use of a washroom to one’s biological sex. These issues have highlighted the discrimination, isolation and violence faced on a daily basis by trans and gender diverse people. To address the vulnerability of the trans/gender diverse community, the Bill amends: sections 2 and 3 of the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination; and subsections 318(4) and 718.2(a)(i) of the Criminal Code to include gender identity and expression in the definition of an identifiably group and to extend the protection of hate propaganda to persons who are distinguished by gender identity and gender expression. Evidence that violence or hate was aimed specifically against transgender or other gender diverse persons on account of that identity or expression will now constitute an aggravating circumstance court can take into account when imposing a sentence for the crime. Bill C-16 began life in 2005 as a Private Members Bill. After languishing for such a long period of time, it was taken up by the current federal Liberal government as part of the government’s legislative agenda to facilitate its passage. Even still, approval by the Senate was not a sure thing in the face of criticism that the amendments infringed on freedom of expression and/or promoted a lifestyle not every Canadian supported. The argument that protecting minority groups infringes on free speech is often used when those rights are new to our social fabric. Once established, we wonder why there was ever an issue. Indeed, the protections afforded by Bill C-16, in the view of this author, serve to promote freedom of (gender and sexual) expression. In moving to better protect gender diversity and expression Canada again proves its global leadership in the promotion of human rights and dignity. It will make celebration of sexuality and diversity this year particularly sweet. Happy Pride! Marc Kemerer practices fertility and reproductive law at Devry Smith Frank LLP By Fauzan SiddiquiBlog, Human Rights LawJune 20, 2017June 22, 2020
Breaking up Before the Wedding: Who gets the Ring? By: Katelyn Bell, Summer Law Student Many television shows and movies portray it, and many couples live it. When a couple separates, who really should keep the engagement ring? While some may argue that it is the recipient’s to keep (after all – it was a gift!), others take the position that the ring belongs to the giver (“If I bought it, it’s mine!”). Based on my own personal survey – conducted amongst family, friends and colleagues – it appears that there is no general consensus on this issue. Whatever your own personal answer may be, would it change depending upon who ended the relationship? A Nova Scotia court has taken a position on this issue, and their opinion? If you broke off the engagement, the ring is not yours to keep. The “who gets the ring” issue went before the small claims court for one ex-couple in Nova Scotia. Several issues the ex’s were in disagreement over were also dealt with by adjudicator Gregg Knudsen. For Knudsen, it was of vital importance to determine who broke the engagement. Interestingly, Knuden was unconcerned with who ended the relationship. “It is the conditional aspect of the gift, the marriage or the intent to marry, which is the critical issue. The determination of the entitlement to the engagement ring is based upon who broke off the engagement and who didn’t.” This decision sparks some interesting questions. Under section 33 of the Ontario Marriage Act, the question of who caused the break-up is irrelevant in determining the right of the donor to recover the gift: Where one person makes a gift to another in contemplation of or conditional upon their marriage to each other and the marriage fails to take place or is abandoned, the question of whether or not the failure or abandonment was caused by or was the fault of the donor shall not be considered in determining the right of the donor to recover the gift. When one looks to the case law in Ontario, a slightly unclear picture emerges. There is case law to support the proposition that engagement rings are conditional gifts that must be returned if the marriage does not take place. In those cases, the courts have looked at who broke off the engagement (similar to the practice taken by Knudsen). See for example McArthur v. Zaduk (2001), where because the donor broke off the engagement, the recipient kept the ring. Though other cases have held that the engagement ring is an unconditional gift that does not have to be returned, regardless of the fault of either party. See Rakus v. Piccolo, (1989). Yet another opinion on the issue comes from Newell v Allen (2012), where the judge ordered that the engagement ring be returned from the intended wife to the intended husband, regardless of who had broken the engagement. In either case, if you ever find yourself in this position as a donor, it’s important that you request the ring back when the engagement is broken. If not, you may be prevented from demanding it back later. Delay in demanding the return of the ring may also suggest that its character has changed from an engagement ring, conditional on marriage, to an unconditional gift: H. (A.) c. M. (M.) (1997). Of course, a break-up is always an uncontemplated occurrence for couples – especially those who are engaged and intend on spending the rest of their lives together. However, having a cohabitation or pre-marital agreement in place can help you to avoid such conflicts down the road, if they were ever to occur. If you need help drafting such an agreement, or if you are having trouble recovering damages or are being sued as a result of a broken engagement, contact Devry Smith Frank LLP’s family law group today or call us directly at 416-449-1400 for more information. “This article is intended to inform and entertain. 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.” By Fauzan SiddiquiBlog, Family LawJune 19, 2017July 5, 2023