Category: Blog

Just because you were married elsewhere, or maybe even have a divorce from a foreign country, does not necessarily mean that our Courts in Canada will not hear your matter.

Take for example, a recent case in 2017, where the Court of Appeal[1] handled a case where a Canadian citizen (husband) was married to a person who resided in China (wife). The wife had never come to Canada; however, the couple did have one child born to the marriage when the husband lived in China briefly.

The wife sought a divorce in Ontario including spousal support, child support and custody of the child pursuant to the Divorce Act. She further requested equalization of the net family property pursuant to the Family Law Act.

In response, the husband filed for divorce in China, seeking a divorce, custody and equalization or property.

In response, the wife brought a motion in an Ontario court requesting temporary child support which was granted.

The husband then requested that his application should be heard in China. The Ontario court agreed and allowed the application to move forward in China. The underlying reasons were that the application involved custody, access and support; therefore, the hearing should be pursued in the jurisdiction of the matrimonial proceeding.

Custody and a divorce were granted by the court in China to the wife. However, the issue of support and equalization were left to be brought forward in the Ontario courts as the husband did not disclose his proper financial information and all his financial holdings were in Ontario/Canada.

The Court of Appeal of Ontario was required to determine two questions:

• Does an Ontario court have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid divorce in a foreign jurisdiction?
• Does an Ontario court have jurisdiction under the Family Law Act to determine the issue of child support after a foreign court has issued a divorce?

The Court of Appeal held that Ontario Superior Court has jurisdiction to determine the issues of child support and equalization of net family property pursuant to the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”). However, there is no jurisdiction under that legislation, or otherwise, for the Superior Court to order spousal support.

From this case comes an important question – Will a foreign divorce be recognized in Canada?

The Canadian courts have stated that divorces obtained in other countries will be held valid if the laws of the parties’ domicile (at the time of their divorce) would have recognized a foreign divorce.[2]

In Canada, s. 22 of the Divorce Act states that a divorce granted by a foreign jurisdiction will be recognized in Canada if either former spouse was ordinarily resident in that foreign jurisdiction for at least one year immediately preceding the commencement of the proceedings for the divorce.

In looking for a divorce, that is also a requirement. At least one of the parties has to be considered a “resident”. For more information on what that may look like, contact our Family Law Department at Devry Smith Frank LLP.

What about remarriage?

Part of the process for authorization to remarry in Canada involves obtaining a legal opinion from a lawyer. The lawyer must give reasons why the divorce should be recognized in Ontario.

If you need help with a foreign divorce being recognized in Ontario, it is worthwhile to discuss your case with a family lawyer in our office.

If you have more questions related to Family Law, please visit our website or contact Katelyn Bell at Devry Smith Frank LLP to discuss any questions regarding your specific family law situation and your options. She can be reached at 416-446-5837 or Katelyn.bell@devrylaw.ca.

This blog was co-authored by Law Student, Kathleen Judd.

“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.”

[1] Cheng v. Liu, 2017 ONCA 104

[2] Zhang v. Lin, [2010] A.J. No. 755, 2010 ABQB 420, 500 A.R. 357, at para. 53

“Orders are not suggestions” is a common sentiment in family court.

In light of the time, money, and effort that is involved in securing a final court order, it is no wonder that someone would become frustrated by the other party’s refusal to comply with its terms.

A common question faced by lawyers, is what to do when one party fails to abide by an order –  What are the options?

One form of legal recourse is to bring a contempt motion, asking the Court to find that the other party is in contempt of the court order. In family law proceedings, motions for contempt are governed by the Family Law Rules.  Payment orders may not be enforced by a contempt motion.

Being found in contempt is a legal consequence for non-compliance with an order. The goal is to deter individuals who feel that they do not need to comply with some or all of the terms of an order. Parties who fail to comply not only interfere with the court process, but obstruct the course of justice. The consequences for being found in contempt range from fines to jail time. Ultimately, the objective with a finding of contempt is compliance.

In determining whether a party should be found in contempt, the Court will consider the following:

1. Was the party aware of the order’s existence at the time of the alleged breach?
2. Did the order clearly and unambiguously state what should or should not be done?
3. Did the party who allegedly failed to comply do so in an intentional way?
4. Was the conduct demonstrated beyond a reasonable doubt? This is in part because findings of contempt are quasi-criminal in nature.

It is important to keep in mind that a finding of contempt is a remedy of last resort. The Court found in Hefkey[1] that a contempt finding should be made sparingly and with great caution.

In family law cases, the Court will be especially concerned with whether the parties have acted in a way that accords with the children’s best interests. In Jackson[2], The Court noted that a party may be excused for non-compliance if it was objectively in the best interests of the child(ren). The Court also acknowledged the complex emotional dynamics that are involved in family law disputes, and the desire to avoid escalating the conflict further.

The importance of complying with the terms of a court order cannot be understated, and the Family Law Rules provide the Court with a range of remedies for non-compliance. That said, the Court will often exercise their discretion to find a party in contempt sparingly, and are hesitant to do so when there are other reasonable options available to send a message that the court order must be followed.

If you have more questions related to family law matters, please visit our website or contact Sarah Robus at Devry Smith Frank LLP to discuss any questions regarding family law and your options at 249-888-4642 or sarah.robus@devrylaw.ca.

This blog was co-authored by Law Student, Kathleen Judd.

“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.”

[1] Hefkey v Hefkey, 2013 ONCA 44

[2] Jackson v Jackson, 2016 ONSC 3466

By David Heppenstall and Abby Leung

Bowen v. JC Clark Ltd., 2022 ONCA 614 (CanLII)

If an employee is terminated without cause, are they entitled to discretionary bonuses? In Bowen v JC Clark Ltd,[1] two portfolio managers at JC Clark were terminated on a without-cause basis and were each given two weeks’ salary plus $577 in lieu of notice. The managers commenced a wrongful termination action against JC Clark, claiming that they were owed $1.3 million in performance fees. The managers argued that this was a term of their employment for the portion of 2014 that they worked prior to their termination. The trial judge dismissed their claim, determining that they were not entitled to be paid performance fees by JC Clark. The portfolio managers appealed the trial decision.

The Ontario Court of Appeal allowed the appeal in part. While the Court of Appeal rejected the appellants’ submissions in relation to their entitlement to performance fees, the Court of Appeal found that the trial judge erred in preventing the appellants from arguing their entitlement to a discretionary bonus. In determining what would be considered fair and reasonable calculation of bonuses given the factual context of the case, the Ontario Court of Appeal awarded each appellant $115,000. In making this decision, the Court of Appeal held that employers should exercise their discretion reasonably and in good faith and that the discretionary nature of performance bonuses does not bring with it unfettered discretion.

Background

The portfolio managers were first hired by a senior investment professional to manage a hedge fund that he created. The fund was sold to JC Clark in 2012 and as part of the sale, the senior investment professional agreed to allow JC Clark to hire the managers to manage the day-to-day activities of the fund. The investment professional entered into an agreement with JC Clark which provided that for four years after the fund’s sale, the investment professional would receive a share of the management and performance fees earned by the fund. The investment professional then entered into side agreements with the managers where he intended to share 50% of his management fees and 100% of his performance fees with them. Subsequently, the managers entered into employment agreements with JC Clark which provided that “at the total discretion of the Company, you may be eligible for a bonus at the end of each fiscal year depending on factors that include your personal performance and the profitability of the Company.”[2] The fund performed exceptionally well during the first half of 2014 under the managers’ supervision—which was when JC Clark terminated their employment without cause.

At trial, the judge dismissed the managers’ claim, finding that the investment professional had paid them the performance fees that they were entitled to for the portion of the year they worked in 2014 and that they were not entitled to the share of performance fees directly from JC Clark. In possessing this knowledge, the trial judge determined that the managers signed employment agreements which did not provide for any performance fees that would be paid by JC Clark.

The managers appealed.

Ontario Court of Appeal’s Decision

The Ontario Court of Appeal allowed the appeal in part. In reviewing the employment agreements, the Court of Appeal dismissed JC Clark’s argument that the discretionary nature of the bonus provision in the employment agreements meant that the employer was entirely unconstrained as to how discretion should be exercised. If an employment agreement provides for a discretionary bonus, the employment agreement contains an implied term that discretion will be exercised in a fair and reasonable manner.[3]

The Court of Appeal held that what constitutes a fair and reasonable exercise of discretion is dependent on the factual context of the case. The managers argued that their discretionary bonus should be calculated in comparison to two similar portfolio managers employed at JC Clark, whose fund did not perform as well as the appellants but received a greater portion of discretionary bonuses in 2014. The portfolio managers provided further evidence that in December of each calendar year, the employer considered the allocation of discretionary bonuses from a pool of funds set aside for that purpose. Distribution of discretionary bonuses was determined by a variety of factors including corporate performance, individual performance, attitude, teamwork, seniority, position within the company, and their length of employment at the company.[4] Taking these factors into account, the Ontario Court of Appeal concluded that a fair and reasonable calculation of bonuses would involve the fund’s performance and bonuses rewarded to other portfolio managers at the time. Ultimately, the Court of Appeal held that the portfolio managers were entitled to a discretionary bonus and awarded each portfolio manager $115,000 in damages.

Conclusion

This case serves as a reminder for employers that discretion should be exercised in a fair and reasonable manner, taking into account all of the factual context and objective criteria. In doing so, employers are strongly encouraged not to take an unconstrained approach that is inconsistent with exercising discretion in a fair and reasonable manner. In determining how to distribute discretionary bonuses, employers are encouraged to consider objective criteria, including individual performance, position within the company, and whether discretionary bonuses will or were awarded to similarly situated employees.

“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

[1] 2022 ONCA 614.

[2] 2022 ONCA 614 at para 9.

[3] Ibid at para 35.

[4] Ibid at para 41.

The end of the COVID-19 pandemic is in sight. Ontario has lifted many public health mandates and restrictions. Many Ontarians are resuming their pre-pandemic lives—including returning to work in-person.

Some have welcomed the transition from working-from-home to returning to the office, while others worry about the loss of the advantages of remote work. Remote work offers the possibility of a better work-life balance, flexibility for childcare, and the time and money saved on commuting. As such, many question whether employers have a right to demand continuing to work remotely, and whether employees may have a basis for refusal.

In most cases, employers do have the right to demand their employees return to the office, and employees, generally, do not have a right to refuse.[1]

However, this principle may not apply to all employment situations as there are a number of factors that must be considered to determine the rights and obligations of both parties to an employment agreement. These factors include the terms of the employment contract, human rights laws, and occupational and health regulations.

1. Employment contract

Specific attention should be paid to the express and implied terms of the employment contract.

Express terms are those are the clearly outlined in the agreement itself. Examples might include the wage amount, or the starting date of employment. Implied terms are not expressly stated in the agreement, but are implied by law. Thus, implied terms will largely depend on the province in which the employment takes place. An example might be where the employment contract does not provide for a termination notice period, in which case, the minimum standards as set out in employment standards legislation, would be implied into the contract.[2]

If the employment contract expressly and unconditionally permits the employee to work from home, then the employer would not have the legal basis to require this employee to return to into-person work, and the employee, in turn, would have a legitimate ground to refuse this demand.

2. Human Rights Laws

Human rights laws may also provide employees with a basis of refusal, but it must be on a prohibited ground of discrimination.[3] In Ontario, the Human Right Code lists the following grounds: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.[4]

Employers cannot force an employee to return to work, if it would be discriminatory to do so. For example, if an employee cannot return to in-person work due to a disability (which is a prohibited ground of discrimination), the employer has a duty to accommodate, and this accommodation may be allowing for continued remote employment.

3. Occupational Health and Safety Regulations

Employers have a statutory duty to safeguard the health and safety of their employees pursuant to the Occupational Health and Safety Act (OHSA).[5] By law, an employer must take every reasonable precaution to maintain a safe working environment.[6] These steps include following any remaining COVID-19 public health guidance in good faith.

Employees generally have a right to refuse work which they have a “reasonable basis” to believe is unsafe or a danger to their health.[7] This being said, the reasonableness of this belief is ultimately decided by a government inspector, who would be called to evaluate the working conditions should the employer and employee be unable to address and redress such concern before-hand, and on their own.[8] The standard of review for such decision is that of correctness, and based on the conditions at the time the work was refused.[9] The following situations are examples of unsafe working conditions granting a right to refuse work: driving a vehicle, which by certain characteristics, is not safe to operate;[10] or failure to provide roofing employees with anchoring technique/guard in case of fall.[11]

Courts have not tested whether simply attending a physical workplace during a pandemic qualifies as an unsafe working condition. Arguably, a workplace could be unsafe where the employer does not follow public health official guidelines, mandates, or restrictions. However, this alone may not necessarily be sufficient to refuse to attend the workplace. Every situation and workplace is different.

It is important for employers to carefully strategize through their return-to-work plans and ensure they are aware of each and every one of their various obligations. It is also important for employees to be aware of their rights to refuse unsafe work — despite the uncertainty as to what that could mean during a global pandemic.

4. Conclusion

Employers do have the right to demand their employees return to the office, and employees, generally, do not have a right to refuse. However, the employment contract, human rights legislation, and occupational health and safety regulations, each prove an added layer of complexity to that statement.

If an employment contract expressly and unconditionally permits the employee to work from home, then the employee would have a legitimate ground to refuse an employer demand to return to the workplace. Additionally, employers cannot force an employee to return to work, if it would be discriminatory and a violation of human rights to do so. Finally, employees have the right to refuse unsafe work — but there remains uncertainty as to what qualifies as an unsafe workplace during the pandemic.

“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.”

[1] Geoff Nixon, “Why your options may be limited if your employer wants you back in the workplace”, CBC News, 4 July 2022, online: https://www.cbc.ca/news/business/canada-employers-wfh-office-return-1.6507545

[2] Employment Standards Act, 2000, S.O. 2000, c. 41, ss 57-58.

[3] Ontario, Human Rights Commission, COVID-19 and Ontario’s Human Rights Code – Questions and Answers, (News Report), 18 March 2020, online: https://www.ohrc.on.ca/en/news_centre/covid-19-and-ontario%E2%80%99s-human-rights-code-%E2%80%93-questions-and-answers

[4] RSO 1990, c H.19, s 2.

[5] RSO 1990, c O.1 [OHSA].

[6] Ibid, s 25(2)(h).

[7] Ibid, at s. 43(3).

[8] Government of Ontario, Part V: Right to refuse or to stop work where health and safety in danger retrieved from: https://www.ontario.ca/document/guide-occupational-health-and-safety-act/part-v-right-refuse-or-stop-work-where-health-and-safety-danger

[9] Fletcher v Canada (Treasury Board – Solicitor General Correction Service), 2002 FCA 424.

[10] Morey v CAT, 2022 ONSC 4621.

[11] Ontario Ministry of Labour) v Vixman Construction Ltd, 2019 ONCJ 955.

Is the Court bound by the agreement between the parties?

The court explores – Whether the court is bound by an agreement made between the parties in order to reach a settlement? In the recent Court of Appeal decision, Richardson[1],  the court looked at a trial decision that was contrary to a settlement that the parties had negotiated. The Court of Appeal was faced with the question of whether the trial judge’s refusal to accept the negotiated settlement between the parties was contrary to the best interests of the children, the principles of fundamental justice, and indicative of bias. The Court of Appeal said no and concluded that they would not interfere with the trial judge’s decision to not accept the settlement between the parties.

In the court process, parties often negotiate a settlement in order to avoid trial. A settlement can be reached at any time during the process. One of the goals of the family court process is to encourage resolution between the parties when possible. An offer to settle should set out all the ways in which the disputed issues can be settled. Parties are strongly encouraged to consider ALL offers because rule 18(14) provides costs consequences for failing to accept an offer if the party who made the offer obtains an order that is favourable as or more favourable than the offer. If the other party makes you an Offer to Settle, you do not accept that Offer, and the order ultimately made by the court is as favourable or more favourable to the offering party than their Offer was, the offeror is entitled to their legal costs, unless the court orders otherwise, to the date the Offer was served, and full recovery of costs from that date.

In other words, if the offer that is presented to you ends up being better than what you received when you went to trial, you may have to pay substantial costs to the other side.

In the Richardson[2] case, the parties advised the trial judge, during the trial, that they were negotiating a settlement. The trial judge granted an adjournment but advised the trial would continue the following day whether or not a settlement had been reached.

The proposed settlement was presented to the judge the following day. The settlement contained language that the children would move from one party’s primary custody (father) to the other party’s primary custody (mother); however, the final decision-making would remain with the father. This move involved significant travel (Niagara Falls to Ottawa).

The trial judge reviewed the proposal and refused to approve it. No reasons provided.

The trial judge decided that a move from one party’s residence to the other was not in the children’s best interest; furthermore, the trial judge amended the time sharing to reduce travel, ultimately reducing the mother’s access to the children.

This case was brought to the Court of Appeal to explore the rejection of the proposed settlement.

It is well established that judges have the authority to review settlements and to reject them if they are not in the best interests of the children[3]. The Court of Appeal stated:

“whether a settlement is in the children’s best interests should take into account more than just the settlement terms. It should also consider the general benefits to children that flow from parents resolving their disputes through compromise rather than litigation”.

While rejecting the proposed settlement undermines the settlement process and the court’s duty to help the parties settle their case[4], the Court of Appeal found that:

“the findings of the trial judge, which were made after a full hearing on the merits and are not contested on appeal, make clear that sound bases exist for rejecting the proposed settlement”.

This decision leaves the question – given the strongly encouraged process of settlement, how and why was the Richardson agreement not upheld?

Ultimately, this decision reveals that, even when a settlement is proposed, the judge can reject the proposal if it fails to meet the threshold of “best interests of the child”.

In this case, the dissent of Justice Nordheimer is noteworthy. He stated:

“In my view, the conduct of the trial judge with respect to his rejection of the parties’ settlement, without reasons, so tainted the conduct of the proceeding that his disposition cannot be allowed to stand. To do otherwise fundamentally undermines the need for court proceedings not only to be fairly conducted but, as importantly, be seen to have been fairly conducted”.

If you are contemplating a settlement outside the trial process, it is worthwhile to discuss your case with a family lawyer prior to signing.

If you have more questions related to Family Law, please visit our website or contact Kenna Bromley at Devry Smith Frank LLP to discuss any questions regarding your specific family law situation and your options 249-888-6641 or kenna.bromley@devrylaw.ca.

This blog was co-authored by Law Student, Kathleen Judd.

“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.”

[1] Richardson v. Richardson, 2019 ONCA 983

[2] Ibid

[3] Martin v. Martin, 1981 CarswellBC 773 (C.A.), at para. 7; C.T.G. v. R.R.G., 2016 SKQB 387, 86 R.F.L. (7th) 312, at para. 11; and Harper v. Harper (1991), 1991 CanLII 8330 (ON SC), 78 D.L.R. (4th) 548 (Ont. Gen. Div.), at p. 553

[4] Family Law Rules, O. Reg. 114/99, r. 2(5)(c)

Montaque v. Handa Travel Student Trip Ltd., 2020 ONSC 3821

In 2017, several college-age students thought they were signing up for a “job of a lifetime” as trip leaders with S-Trip to travel and assist with executing activities, excursions and parties.[1] While the students were told to expect 14-hour workdays, evening shifts, and long hours, trip leaders did not receive a paycheque and were called “volunteers” in internal documents. S-Trip would only pay the students a small honorarium — well below the province’s minimum wage.

A class action lawsuit was launched against S-Trip and its affiliates with the suit alleging that the trip leaders were wrongfully classified as volunteers while doing the work of an employee. It was contested whether the students were entitled to receive benefits for employees as specified under the Employment Standards Act (“ESA”)[2].

An Ontario court has approved the settlement between the former trip leaders and the organization with the firm’s Toronto-based parent company, I Love Travel. The court has agreed to a $450,000 settlement and reclassifying staff on future trips as employees rather than volunteers.[3]

This case is the first volunteer misclassification class action in Canada.[4] In addition to setting a new precedent, the case has the potential to significantly impact employment law moving forward.

Background

Despite the fact that S-Trip advertised full-time salaried positions on their job board, S-Trip trip leaders were required to sign contracts specifying that they were volunteers providing services to the company and that no employment relationship was established between the trip leader and the company.[5] Trip leaders were responsible for performing various tasks related to pre-trip planning and procedure, travel organization, airport and flight procedures, briefing sessions, and return trip organization and procedures.[6] While staff were granted an honorarium, it was calculated by the number of trips they completed and differentiates based on position.[7] Income tax, employment insurance, and Canadian pension plan deductions were not deducted from the honorarium.[8]

The Class Members argued that the following factors established an employment relationship:

1. The Class Members are the main point of contact between the customers and S-Trip;
2. S-Trip’s operations along with the duties performed by the Class Members serve no civic, religious or charitable purpose;
3. S-Trip is a for-profit company;
4. Class Members are subject to a six-step interview process, which includes a Garda Pre-Employment Background Check;
5. Class Members are provided with extensive guidelines and manuals;
6. Class Members are assigned mandatory duties and working schedules;
7. The duties assigned to Class Members are obligatory and not voluntary;
8. Class Members are compensated for their work – e., the honorarium; and
9. The compensation provided to Class Members increases with seniority.[9]

Settlement Approval

The Ontario Superior Court of Justice approved the proposed settlement in the all-inclusive amount of $450,000. Justice Morgan first reviewed the principles in which the court must take into account in assessing the reasonableness of a settlement including the likelihood of success, the presence of good faith, and the future expense and likely duration of litigation.[10] In applying these principles to the settlement, Justice Morgan found that the settlement proposal was reasonable and provided several benefits including that it avoided delays associated with trial and appeals, provided for pro-rata payments based on the length of the trips taken by class members, and it achieved behaviour modification as the defendants agreed to reclassify class members as employees for future trips.[11] Justice Morgan further noted that the settlement struck a balance between individual compensation of class members and an efficient and expeditious overall distribution.[12] The court concluded by noting that the settlement achieved was a good one as it will put money in the pocket of class members that they would not likely be able to achieve on their own.[13]

Conclusion

As Justice Morgan noted, this is the first volunteer misclassification class action in Canada and will have a significant impact in labour and employment law moving forward. The case is significant for employers in particular as it reflects what type of resolution in class proceedings would fall within the “zone of reasonableness” required by the Class Proceedings Act, 1992.[14]

While a settlement is not a binding precedent in law, the Court’s approval of the settlement provides a cautionary tale for employers. For example, employers would be well-advised to carefully consider if the volunteers in their organization may actually be considered employees by law. Further, class actions are becoming a more effective method for employees to seek claims against employers as it provides class members with a less expensive and more efficient litigation vehicle to pursue their claims.

“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

[1] Lauren Pelley, “S-Trip accused of exploiting volunteer ‘trip leaders’ who work long hours” CBC August 24, 2017: https://www.cbc.ca/news/canada/toronto/s-trip-employees-1.4246725 [CBC].

[2] SO 2000, c. 41

[3] 2020 ONSC 3821 at para 6 [Montaque].

[4] Ibid at para 13.

[5] CBC, supra note 1.

[6] Montaque, supra note 3 at para 3.

[7] CBC, supra note 1.

[8] Ibid.

[9] 2020 ONSC 3821 [Statement of Claim, Plaintiff at para 40].

[10] Montaque, supra note 3 at para 5.

[11] Ibid at para 6.

[12] Ibid at para 8.

[13] Ibid at para 13.

[14] S.O. 1992, c.6.