“No Mulligans”- Challenges Faced By Insurers Requesting Multiple Medical Examinations In Personal Injury Cases Where the physical or mental condition of a party to a proceeding is at issue, a medical examination may be granted by a court of competent jurisdiction. This examination is generally regarded as a defendant’s right in personal injury cases. However, there are a number of considerations which affect the availability of multiple examinations for any given case. Where multiple examinations are requested, the primary consideration will be fairness, and it will be critical to establishing the necessary evidentiary basis supporting the defendant’s argument that fairness requires a second or further examination. Notably, a recent decision of Justice Nicholson of the Ontario Superior Court[1] has highlighted the conflicting considerations applicable to this right and cautioned legal practitioners against seeking “a second kick at the can.” General Rule: One Examination per Specialty per Defendant Typically, in a personal injury matter, an examination will be permitted for each specialty applicable to the plaintiff’s injuries. For example, an orthopaedic examination is appropriate where there are orthopaedic injuries; a psychiatric examination is appropriate where there are psychiatric complaints. Examinations by other specialists are appropriate where there are complaints within the area of expertise of those experts. The defendant’s right to a medical examination of the plaintiff in a personal injury matter arises under section 105 (2) of the Courts of Justice Act:[2] “where the physical or mental condition of a party … is in question, the court … may order the party to undergo a physical or mental examination by one or more health practitioners.” “Health practitioner” is defined as a person licenced to practice medicine, dentistry, or psychology. While the language of the statute is discretionary (i.e., “may order”), a first medical examination has been generally established by the courts as a right. Beyond the first exam, section 105 (4) of the Act permits “further physical or mental examinations.” The procedure is set out in Rule 33 of the Rules of Civil Procedure. Specifically, the order for the examination “shall name the health practitioner or practitioners by whom the examination is to be conducted.”[3] Similarly, Rule 33.02 (2) empowers the court to order a “second examination or further examinations.” Where there are two or more defendants, each defendant is entitled to a separate defence medical examination of the plaintiff by their own experts.[4] “Overlapping” Examinations A court will typically not permit multiple “overlapping” examinations to assess the same type of injury. For example, examinations by an orthopaedic specialist and by a physiatrist regarding the same orthopaedic injuries or an examination by a psychologist and a psychiatrist with respect to the same psychiatric complaints would not generally be permitted. However, grey areas arise where there are injuries or complaints that are partially within the expertise of one specialty and partially within the expertise of another. For example, where a plaintiff claims to have suffered a traumatic brain injury (TBI) as well as psychiatric complaints following an accident, an examination by a neuropsychologist with respect to the TBI complaints might be appropriate and an examination by a psychiatrist with respect to the psychiatric complaints might also be appropriate. The court will look at the degree of overlap between the complaints and may restrict the examination to either a neuropsychologist or a psychiatrist. In one case where examinations had been conducted by a psychiatrist and a neurologist, the court refused to order further examinations with a neuropsychologist, an orthopaedic surgeon, and a second psychiatrist.[5] In another example, an examination by a psychiatrist was refused where an examination had been conducted by a psychologist, on the basis that there was an inadequate evidentiary basis for the psychiatric examination and the examination could delay the trial.[6] In determining whether a further or “overlapping” examination will be ordered, the court considers whether the defendant will be prejudiced if no examination is permitted, and this will be weighed against any risk of prejudice to the plaintiff.[7] A key factor in determining prejudice is any possible delay in the trial. The decision will be based upon the evidentiary record, and the defendant has the onus to provide evidence supporting the need for a second or further examination and addressing the issues of fairness and prejudice.[8] Examinations by Accident Benefits Insurers A defendant in a tort action will be entitled to conduct defence medical examinations notwithstanding that the plaintiff may have been examined by the defendant’s Statutory Accident Benefits Schedule (SABS) insurer where the initial examination did not address all the issues and there was no abuse of process.[9] An examination under an insurance contract is separate and distinct from a medical examination under section 105. An examination under contract prior to litigation commencing does not pre-empt the defendant’s right to an examination under section 105.[10] The Test for Fairness (Bonello) The applicable test for further examinations was addressed by Justice Brown in Bonello v Taylor.[11] Justice Brown stated that the overriding consideration was trial fairness. In brief, the factors are: the assessment would be for a legitimate purpose (i.e., not to delay or cause prejudice); the party’s medical condition has changed or there is new information; a report by the defendant is needed to “match” the expert evidence from a specialist’s report from the plaintiff—although this is not automatic; the proposed examination would be necessary as a diagnostic aid, if conducted by a person who is not a health practitioner (e.g., a rehabilitation expert); there is sufficient persuasive evidence to demonstrate the need; evidence of unfairness is also taken into account; and whether the further examination would impose an undue burden on the plaintiff. Read a full summary of the factors in Bonello. When Is Further Examination Denied (Mitsis ) The recent decision of Justice Nicholson in Mitsis v Holy Trinity addressed many of these factors.[12] The plaintiff was pursuing a slip and fall claim and alleged that she suffered injuries including a fractured right shoulder and arm. Following examinations for discovery, the defendant arranged to have the plaintiff examined by a physiatrist (at that point, the plaintiff had not served any experts’ reports). Subsequently, the plaintiff served a report from an orthopaedic surgeon. In response, the defendant sought their own examination by an orthopaedic specialist. The defendant claimed that it would be prejudiced if a defence orthopaedic assessment were not permitted. Justice Nicholson stated that there had been no material change in the plaintiff’s condition and the defendant knew that the plaintiff’s injuries were primarily orthopaedic in nature when it elected to commission a physiatry exam. Justice Nicholson felt that there was no procedural unfairness to holding the defendant to its choice of experts, and denied the request for a defence orthopaedic examination. As an aside, Justice Nicholson commented that perhaps the defendant’s physiatry report was not as favourable as the defendant might have hoped: “One cannot help but be suspicious that the Defendant had hoped for a report more favourable to its position in the litigation from Dr. Perera [the defence physiatrist] and is now seeking a ‘mulligan.’” Conclusion The importance of establishing the necessary evidentiary basis for a second or further medical examination of the plaintiff cannot be overstated. An affidavit from the prospective medical expert setting out why a further examination is necessary is generally preferable to an affidavit based on information and belief from defence counsel’s clerk. The affidavit material must address the factors set out in Bonello. Establishing that fairness favours permitting the examination and that the plaintiff will suffer no undue prejudice will be key. “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 contact a lawyer. Each case is unique and different and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” [1] Mitsis v Holy Trinity Greek Orthodox Community of London and Vicinity, 2021 ONSC 5719 [Mitsis]. [2] Courts of Justice Act, RSO 1990, c C.43, as amended. [3] Rules of Civil Procedure, RRO 1990, Reg 194, as amended [emphasis added]. [4] Maniram v Jagmohan, [1988] OJ No 2877. [5] Jones v Spencer, [2005] OJ No 1539. [6] Clarfield v Crown Life Insurance, [2000] OJ No 960. [7] Lawrence v Primmum Insurance Co, 77 CPC (6th) 388; see also Suwary (Litigation Guardian of) v Women’s College Hospital, 2008 CarswellOnt 887. [8] Abergel v Hyundai Auto Canada, [2002] OJ No 4387. [9] Jeyanthiran v Ratnam, [2009] OJ No 469. [10] Paul Revere Life Insurance Co v Sucharov, [1983] 2 SCR 541. [11] Bonello v Taylor, 2010 ONSC 5723. [12] Mitsis, supra note 1. By Fauzan SiddiquiBlog, Insurance Defence, Personal InjuryDecember 14, 2021December 14, 2021
The Threshold Test & Statutory Deductible in Motor Vehicle Accident Claims Defining General Damages In every motor vehicle accident, an individual may claim general damages. General damages is commonly referred to as non-pecuniary losses, non-economic damages, or quite simply damages for pain and suffering. These are damages that are not economic in nature, yet still, affect a person’s lifestyle and quality of life. They cannot be calculated or quantified like lost income or medical bills, rather they compensate for things like pain and suffering, loss of quality of life, and emotional or psychological distress. The Threshold In Ontario, in order for an individual to recover general damages (i.e. damages for pain and suffering, also known as non-pecuniary losses) in a motor vehicle accident lawsuit, the individual must first satisfy the “Threshold Test” 1 by proving on a balance of probabilities that their injuries are both permanent and serious: As denoted in section 267.5(5) of the Insurance Act– the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss from bodily injury or death arising directly or indirectly from the use or operation of the automobile, UNLESS as a result of the use or operation of the automobile the injured person has died or has sustained: (a) permanent serious disfigurement; or (b) permanent serious impairment of an important physical, mental or psychological function. 1996, c. 21, s. 29; 2011, c. 9, Sched. 21, s. 3 (3).2 The Deductible In addition to satisfying the threshold test, an individual must also prove that their general damages exceed the statutory deductible in order to recover any amounts under this head of damages. The current statutory deductible for 2021 is $39,754.31 and increases each year.3 What this means is – if an individual is involved in a motor vehicle accident and their claim for pain and suffering is valued at an amount equal to or less than the current statutory deductible, they will receive nothing under this head of damages.[1] It is important to note that this statutory deductible applies only to general damages – so if an individual has losses relating to housekeeping or income loss, for example, this deductible does not apply for those damages. The rationale for this deductible is to discourage smaller or frivolous tort claims, and operates to save insurance companies from paying out on smaller claims. For example: An elderly and retired individual was on their way to the local grocery store, and while driving to their destination, was rear-ended by another motorist. As a result of the accident, the elderly individual sustained various injuries, and now has difficulty doing housekeeping tasks at home and can no longer enjoy the things they used to do like taking long walks, exercising or travelling with their family. The elderly individual sues the other motorist, and the two sides are unable to come to a fair settlement at mediation, so the case proceeds to trial. At trial, after hearing the evidence and considering the facts of the case, the jury deliberates and agrees that the claim satisfies the threshold test, concluding the injuries sustained are both permanent and serious, and as a result awards damages. The jury arrives at a number for general damages which they think is fair to compensate the elderly individual for their injuries. In addition to an award of $10,000 of damages for housekeeping, the elderly person is awarded $60,000 for general damages relating to pain and suffering. From this amount, the statutory deductible of nearly $40,000.00 is subtracted, leaving the insurance company liable to pay out a little over $20,000.00 to the elderly individual for the general damages. All in all, the elderly individual takes home $10,000 in damages for housekeeping and a little over $20,000 for general damages. If you have more questions related to motor vehicle accident claims, please visit our website or contact Cindy Leung at Devry Smith Frank LLP and Derfel Injury Law to discuss any questions regarding your rights and options. This blog was co-authored by Student-At-Law Amar Gill. “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 contact a lawyer. Each case is unique and different and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” Sources [1] https://www.ontario.ca/laws/statute/90i08 [2] Ibid. [2] https://www.fsrao.ca/industry/auto-insurance/regulatory-framework/guidance/2021-automobile-insurance-indexation-amounts-guidance-updated-december-18-2020 [1] As of 2021, the deductible of $39,754.31 is waived if an individual’s claim is above the monetary threshold of $132,513.28. This monetary threshold is also subject to increase each year. By Fauzan SiddiquiBlog, Personal InjuryNovember 25, 2021November 25, 2021
Filing Mistakes Prove Costly No Leniency for Self-Represented Litigants Across Canada, there continues to be a rising trend in self-represented litigants. With this comes the need for these individuals to understand the rules and procedures of the court to ensure efficient, fair and affordable access to justice. In the recent decision of Bloomer v Workers Compensation Board (2020), Alberta’s Court of Appeal confirmed that motion judges have no authority to correct the procedural missteps of self-represented litigants, reinforcing the expectation that self-represented litigants familiarize themselves with the relevant legal practices and procedures pertaining to their individual case.1 While the Court acknowledged the disadvantages encountered by self-represented litigants, it nevertheless confirmed that the same statutory regime and rules apply regardless of whether the litigants have legal representation or not. Self-represented litigants may be shown some flexibility in the judicial process in the manner in which they are guided and shown leniency at times. However, there are instances where Courts are limited in their flexibility, where there simply are no redo’s, such as with court filings. Filing Mistakes Can Prove Costly Hypothetical: Let’s say you come and notice that your child’s vehicle is damaged; it appears to have been rear-ended while parked, and you have good reason to believe it was the fault of your neighbour. (Ex: Security camera footage). Since the vehicle is owned by your 17-year-old, you decide in an effort to save costs to bring an action in small claims court against your neighbour for the cost of the repairs. You draft up the claim under your child’s name, file it in the Court’s e-filing system and click submit. Moments later, you realize you used the wrong form and now you need to correct the form you’ve submitted. What’s the fix and will it cost you? Unfortunately yes, and the fix is not as straightforward as hoped. Since the claim involves a minor, or as the court defines it (a person with a disability), the court clerk would not be able to accept a Form 23A “Intent to Withdraw” or “Notice of Discontinuance” due to Rule 23 of the Rules of Civil Procedure. A registrar is unable to sign off on this change due to the involvement of a minor. RULE 23 DISCONTINUANCE AND WITHDRAWAL 2 Discontinuance by Plaintiff 23.01 (1) A plaintiff may discontinue all or part of an action against any defendant, (a) before the close of pleadings, by serving on all parties who have been served with the statement of claim a notice of discontinuance (Form 23A) and filing the notice with proof of service; (b) after the close of pleadings, with leave of the court; or (c) at any time, by filing the consent of all parties. R.R.O. 1990, Reg. 194, r. 23.01 (1); O. Reg. 427/01, s. 10. (2) If a party to an action is under disability, the action may be discontinued by or against the party only with the leave of a judge obtained on motion under rule 7.07.1. O. Reg. 19/03, s. 6. To correct this mistake, it will require bringing a motion to a judge to explain what happened with respect to filing the incorrect form. When drafting this motion, the Court advises to provide notice to the other side, and if possible, to obtain their consent. If the opposing side has already filed an intention to defend, this change will likely involve cost consequences. There are limits on the Court’s ability to relax the rules for self-represented litigants, particularly when it comes to contraventions or issues of non-compliance that affect deadlines, limitation periods and filing mistakes. Takeaway: When going the route of self-representation, be careful when filing and familiarize yourself with the rules, procedures and protocols applicable to your case because mistakes can be costly. Conclusion Access to justice has become an important issue of focus in many areas of the law, particularly in family courts. It is important to rely on the help of experts and legal professionals to help navigate and guide you through the process. This blog was co-authored by Student-At-Law Amar Gill. “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 contact a lawyer. Each case is unique and different and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” Sources [1] https://www.canlii.org/en/ab/abca/doc/2020/2020abca334/2020abca334.html?resultIndex=1 [2] https://www.ontario.ca/laws/regulation/900194 By Fauzan SiddiquiBlog, Family LawNovember 19, 2021November 19, 2021
What If Separating Parents Disagree Over Vaccinating Their Children? Vaccine debates are currently at the forefront of public opinion. Unsurprisingly, many separating couples stand on either side of this debate. This leads to the question: what if separating couples disagree as to whether their children should be vaccinated? In our previous blog, we predicted that courts would likely resolve this issue in accordance with government policy and recommendations. In other words, if the Ontario government finds that vaccines are safe for children, then the Ontario courts would likely agree. All Ontarians turning 12-years-old before the end of 2021 are now eligible to receive their first dose of the COVID-19 vaccine. As well, the Ontario government is currently preparing to roll out vaccines for children between the ages of 5 and 12 – what does this mean for separating parents? Health Care Consent Act The decision to receive a vaccine (or any health care treatment) lies with the individual, so long as the individual is able to provide “informed consent” to the treatment in question.[1] This extends to children as well, unless there is reason to believe the child is unable to appreciate the consequences of accepting or refusing the treatment (or vaccine). Generally, the older the child, the more likely they will be in a position to provide informed consent, and vice versa. This issue is ultimately decided by the health care professional who is administering the treatment. Assuming the child is too young to consent to treatment for herself, we move on to the next step. Decision-Making (Custody) Orders or Agreements The legal term “custody” was recently replaced with “decision-making”. If one parent has a custody or decision-making order or agreement[2] in their favour, then they will have authority over the child’s medical decisions, where the child is unable to make those decisions for herself. No Orders or Agreements in Place If separating parents are not subject to a court order or separation agreement setting out decision-making for their children, then they will need to look to a court or arbitrator to decide the issue. The sole factor in a court/arbitrator’s decision on this issue will boil down to the best interests of the children. The case of A.C. v. L.L. 2021 ONSC 6530 is the one Ontario family lawyers and separating parents have been waiting for. The parents, in this case, had triplets, each 14 years of age. Father wanted the children to receive the COVID-19 vaccine, while Mother disagreed. Mother would not provide Father with the children’s health cards. The court ultimately sided with the Father, reasoning as follows: [28] The responsible government authorities have all concluded that the COVID-19 vaccination is safe and effective for children ages 12-17 to prevent severe illness from COVID-19 and have encouraged eligible children to get vaccinated. These government and public health authorities are in a better position than the courts to consider the health benefits and risks to children of receiving the COVID-19 vaccination. Absent compelling evidence to the contrary, it is in the best interest of an eligible child to be vaccinated. The court ultimately ordered Mother to provide Father with the children’s health cards within 5 days. Notably, however, the court did not order that the children “shall” be vaccinated, but only that they will be “entitled” to receive the vaccine if they so wish. This is due to Health Care Consent Act, which allows individuals (including children) to decide for themselves whether they wish to be vaccinated. When Ontario rolls out vaccines for children 5 and up, the same legal analysis is likely to apply: there will be a presumption in favour of vaccination unless a parent is able to provide compelling evidence to the contrary. In practical terms, this “compelling evidence” would likely need to be credible, expert evidence confirming that vaccination would be contrary to the child’s best interests, likely due to pre-existing health conditions. [1] Health Care Consent Act, section 4. [2] Parents with separation agreements establishing decision-making responsibilities should be aware: courts still have the ability to disregard separation agreements and impose an order that is in the child’s best interests. However, separation agreements are generally informative and persuasive to a court. “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, COVID-19, Family LawNovember 15, 2021November 15, 2021
The Renewal Timeline for Commercial Leases – A Landlord’s Silence as to the Renewal Deadline is Not Bad Faith Courts are adamant that deadlines for the renewal of commercial leases must be strictly met. The recent decision of the Court of Appeal for Ontario in Subway Franchise Restaurants of Canada Ltd. v. BMO Life Assurance Company, 2021 ONCA 349 (CanLII) confirms that these deadlines are generally set in stone, even if the landlord is uncooperative with the renewing tenant. Here’s the case in a nutshell – As the tenant, Subway was required to renew its commercial lease with its landlord nine to 12 months before the expiration of the term. BMO, who was not the original landlord, acquired the building where Subway was leasing. When BMO assumed the lease, Subway executed an estoppel certificate stating that the lease expired on August 23, 2018, and as a result, Subway would be required to exercise the option to renew between August 24, 2017, and November 23, 2017. Subway’s central database reflected an incorrect expiry date of May 31, 2018. Subway wrote to BMO to confirm the expiry date on multiple occasions and, not helping matters, BMO left those confirmation letters unanswered. Subway missed its window to renew and BMO did not accept the renewal. Subway commenced an application for relief from forfeiture of its lease, arguing that BMO failed to act in good faith under the lease by ignoring its requests for confirmation of the expiration date. In its decision, the Court of Appeal considered the Supreme Court of Canada decision in C.M. Callow Inc. v. Zollinger, 2020 SCC 45 (CanLII). Here, the Court held that no contractual right can be exercised dishonestly. The case applies to contracts where one party lies or knowingly misleads another. Where a party has made false misrepresentations, there is a duty to correct a misapprehension. But a contracting party is not required to correct a misapprehension to which it has not contributed. In the Subway decision, the Court found that BMO did not attempt to knowingly mislead Subway with its silence. BMO did not outwardly or intentionally obscure the lease terms from Subway and had provided transparency in regard to its plan to redevelop the property. BMO did not create a false impression regarding the renewal of the lease. Even though BMO did not respond to Subway’s inquiries, its failure to respond did not amount to the kind of bad faith that is discussed in Callow. As a result, Subway was denied relief from forfeiture. Critical Factors to Consider in Commercial Lease Renewals To address the challenges associated with lease renewals and to avoid messy disputes, here are some key factors to bear in mind: FOR LANDLORDS: Involve a lawyer before entering into lease renewal negotiations with a tenant to ensure that any correspondence and new or revised clauses are compliant with relevant legislation and case law.Provide appropriate notice to a tenant about when the lease is due to expire and when the renewal period will begin and end.Consider the current state of the rental market in your area when a tenant is up for renewal. Are you motivated to keep a good tenant in a bad market? Is there room for a rent increase and what ceiling does the lease agreement provide for that? Do you need an inspection of the property to determine its condition and use that as leverage in negotiations?Show transparency in your intentions with respect to long-term leases and renewals. Don’t get stuck with a bad faith claim. FOR TENANTS: Again, involve a commercial lawyer in your lease negotiations so you understand your obligations and you can avoid any expensive pitfalls.Evaluate your business needs, your location and your budget so you know where you stand on costs and the length of time to which you want to commit.Check market rents in your neighbourhood for comparison and negotiation.Pay particular attention to lease expiry, renewal and termination provisions and consider how you can protect yourself in the event of changing circumstances. Important Takeaway The decision made in Subway confirmed that the expansive duty of good faith set out in Calloway has some limitations. In order to breach a duty of good faith in a contract, there must be an intention to knowingly mislead. It is not enough that one party remains silent and fails to correct a poor assumption. So when you are renewing a commercial lease, make sure that you independently check your facts and your deadlines and protect yourself from a raw deal. If you have more questions about relief and renewals of commercial leases, you can contact Alida Brydon at 289-638-3174 or email her at alida.brydon@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.” *This blog was co-authored by Angela Victoria Papeo* By Fauzan SiddiquiBlog, Commercial LitigationNovember 9, 2021July 5, 2023
Bill 27 and The Unveiling of the Level Playing Field for Ontario Employees (Updated) Background Working for Workers Act 2021 (the “Act”) introduced by the Ontario government on October 25th, 2021 has now passed and has received royal assent as of December 2, 2021. The Act will attempt to level the playing field for Ontario professionals through several changes. Most notably, it eliminates the use of non-compete agreements in employee contracts. This will be a step towards protecting employees entering into other work opportunities for the benefit and advancement of their careers and improving the support and standards for employees, along with a work policy for employees to disconnect, required by employees with 25 employees or more. This would mean employees would be expected to disengage from work-related communications during “off” hours, and employers could not seek recourse for such disconnection. Minister Monte McNaughton, Minister of Labour Training and Skills Development, established the Ontario Workforce Recovery Advisory Committee, June 2021, undertaking the revival of Ontario’s economy and how to better its future progress. Proposal If passed, this Act would amend Ontario’s Employment Standards Act 2000 (ESA) amongst other statutes in Ontario. This could attract global talent and provide the province with a competitive advantage, especially within industries where Canadian companies lack a leading edge. Work Disconnect Employers with 25 or more employees will be required to formally notify employees through written Policy about “disconnecting” from their work-related obligations and post at the end of each workday. The Act addresses the meaning of disengaging from work-related communications such as emails, phone or video calls, sending or reviewing messages as per the employee’s job description. Employees would be free from work performances following the end of each workday. The Policy drafted by employers must include the date it was prepared and any changes made, providing a copy to all employees within 30 days of preparation. The employer is now required to prepare, produce or amend existing policies to comply with the Act and must comply by March 1, 2022. Proscribe Non-Compete Agreements Employers are banned from including non-compete agreements into employee contracts and other contracts which could potentially prohibit employees from engaging in other opportunities, be it work, occupation or business that is in direct competition with the employee’s current business, following the end of that relationship, subject to some exceptions. If any employee were to sign such an agreement, this would be rendered void and violate the Act. While the effort could assist the Canadian economy, there could be some setbacks for employers looking to protect their intellectual property and current and long-standing clients. In this regard, there is an exception to the Act. The legislation will still allow companies to forbid departing employees from using intellectual property, confidential information. It would still be allowed in the sale of a business or part of a business. As per the agreements of the sale, the purchaser and seller enter into a binding contract which forbids the seller from partaking in any activity, business, work, occupation, profession, project, or other related action that is in direct competition with the engagements of the purchaser acquiring the business after the sale, as well as after the seller becomes an employee of the purchaser. The goal is, to provide job mobility and limit competition barriers. Further Changes Included are: Lifted Barriers for Canadian Experience Requirements Amendments to the Fair Access to Regulation Professions and Compulsory Trades Act, 2006, have removed existing barriers for access to jobs that match skills and qualifications. This would be applicable for Canadian experience requirements and internationally trained individuals. There will, however, still be requirements to ensure there is compliance with the regulation in respect to language proficiency in English or French. Recruitment and Help Agency Licensing The Act also adds protection for vulnerable employees with amendments to the Ontario Employment Standards Act 2000 to establish a licensing system for recruiters and temporary help agencies. There will be a list of requirements for such as licensing to operate in the province. The licenses would then be issued by the Director of Ontario Employment Standards yearly. Availability and Accommodation of Restrooms for Delivery Workers The Act will require business owners to provide company restrooms for delivery workers if they are delivering or picking up items. This would amend the Occupational Health and Safety Act. Any exceptions would include that providing access would not be reasonable for the health and safety of any person at the workplace; if providing access would not be reasonable or practical regarding all circumstances, with several regards to specific circumstances relating to the current employees of the workplace and location of the washroom in the workplace. COVID-19 Recovery and WSIB The Act further allows surpluses in the Workplace Safety and Insurance Board’s (WSIB) Insurance Fund to be distributed to certain levels to business as an initiative to assist employers with the impacts of COVID-19. It provides that the WSIB’s current reserve may be distributed to Schedule 1 employers as defined in WSIA if the amount of the insurance fund meets a sufficiency ratio. Future Impact The wording of the legislation with respect to non-compete clauses is important as many employers have and rely upon non-compete clauses in their current contracts. As we know from Waksdale v. Swegon North America Inc., 2020 ONCA 391, if an employment contract contains a clause that violates the Employment Standards Act, the entire contract is void, even if the employer has no intention of enforcing the offending clause. An employer’s action or inaction will not be enough to save an otherwise invalid contract. The Act does not state that the prohibition of non-compete clauses will apply retroactively. Nevertheless, Employers should be vigilant of the changes in the Employment Standards Act to reduce the risk of unwelcome surprises upon the termination of an employee. If you have any questions regarding the Working for Workers Act, 2021 and how these proposed changes could impact your workplace, please contact Timothy Gindi at 416 446-3340 or Timothy.Gindi@devrylaw.ca. Additionally, you can contact Marty Rabinovitch at 416 446-5826 or Marty.Rabinovitch@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.” This blog was co-authored by Angela Victoria Papeo* By Fauzan SiddiquiBlog, COVID-19, Employment LawOctober 30, 2021March 27, 2024
Mould in your home – the how’s, what’s and why’s – Are you covered by your homeowner’s insurance? Mould – what is it? Mould is a fungus that is related to yeast, mushrooms and other fungi. It can grow in a wide variety of environments including inside buildings. Although it is a natural part of the environment, Health Canada considers indoor exposure to mould a significant health hazard. Moulds are very common in buildings and homes. Mould will grow in places with a lot of moisture, such as around leaks in roofs, windows, pipes, or where there has been flooding. When mould spores drop in places where there is excessive moisture, they will grow. Mould grows well on paper products, cardboard, ceiling tiles, and wood products. Mould can also grow in dust, paints, wallpaper, insulation, drywall, carpet, fabric, and upholstery. Moulds can trigger a variety of symptoms, primarily as a result of allergic responses, although mould can cause certain diseases directly. Potential symptoms include itchy eyes, throat irritation, stuffy nose, coughing, wheezing, headaches, fever and shortness of breath. Infants, children, the elderly, and those with existing health conditions are at greater risk—including those experiencing severe cases of COVID-19. Prolonged exposure may be particularly harmful. Mould can also cause physical damage to building materials including rotting of wood components of the building such as wall studs, floor joists and floorboards as well as damage to other building components such as ceiling tiles, drywall, and carpet. In extreme cases, mould can also cause structural issues if the decay is pronounced. Mould has been identified as a cause of “sick building syndrome”: a condition affecting a building wherein building occupant(s) may feel sick while they are in the building, but it is difficult to identify a specific cause. Testing Testing can determine the type of mould involved, although this is not usually useful information, as all moulds should generally be removed. Testing surfaces Staining may indicate that a surface has been water damaged while discolouration to surfaces may indicate mould growth. Testing for mould can be done by testing surfaces upon which mould is found. Hidden mould growth may be present behind materials if these materials were subjected to water damage in the past and have since dried out. They can be at increased risk of future mould growth if exposed to damp conditions in the future. A lab will examine the samples under a microscope and assess the extent of the mould growth. The extent will be classified as sparse, moderate or abundant. The presence of mould spores without other fungal structures associated is assessed as follows: a few spores (< 10 spores average per microscopic field at 400X),some spores (10 – 100 spores average per microscopic field at 400X),many spores (> 100 spores average per microscopic field at 400X). The presence of a few spores generally represents settled spores on the surface of the sample rather than indicating mould growth. Testing air quality Testing can also be done by testing air quality. Currently, there is inadequate scientific evidence to establish a clear relationship between airborne spore concentration and adverse health symptoms. As a result, there are no exposure limits or numerical guidelines for airborne spore concentrations exceeding which would indicate a health risk to building occupants. Health Canada does not recommend air sampling, presumably for this reason – it provides information that is not useful in dealing with a mould problem. Remedial work The first step in dealing with mould is to eliminate the damp conditions that gave rise to the growth of the mould. Then the mould itself should be removed. There is little point in removing mould if the damp conditions that gave rise to the mould have not been adequately remediated, as the mould will just regrow. In some cases, mould can be dealt with by cleaning and disinfecting. In extreme cases, extensive remediation work can be required to remove contaminated drywall, framing and other affected building components. Here is a basic checklist to remediate the situation yourself: Remove or replace carpets and upholstery that have been soaked and cannot be dried promptly.Clean up and dry out your home thoroughly and quickly (within 24-48 hours) after any flooding. Dig out mud and dirt.Scrub cleanable surfaces (such as wood, tile, and stone) with soapy water and a bristle brush. Thoroughly clean all hard surfaces (such as flooring, trim, wood and metal furniture, countertops, and sinks) with water and dish detergent.Dry surfaces quickly and thoroughly after cleaning.Use a fan, air conditioner or dehumidifier to help the surfaces dry after you finish cleaning. Consider professional assistance. You may be able to clean a small area of mould on your own, but a larger presence should be handled by a professional restoration contractor. Prevention You can control mould growth by: Controlling humidity and moisture levels;Promptly fixing leaky roofs, windows, and pipes;Thoroughly cleaning and drying after flooding;Ventilating showers, laundry, and cooking. HEPA air filters can be useful in filtering out airborne mould spores that might otherwise trigger allergic or other reactions. Your home should be checked routinely for signs of mould. It could appear as a fuzzy discolouration on surfaces, often accompanied by moisture. It may also be accompanied by a damp or musty odour. Watch for obvious signs of leaks, condensation, or flooding. The source of moisture may also be hidden, so it is important to check behind walls or above ceiling tiles—especially if water damage has occurred. Mould can grow quickly, so it is important to deal with latent dampness immediately. Moisture problems are usually preventable. The longer damp conditions are allowed to remain, the more mould is likely to grow and spread and the more difficult and expensive it will be to clean up. The Role of Homeowners Insurance You may be covered for damage caused by mould in your homeowner’s policy, although not all policies provide this coverage as standard coverage. The first step is to review carefully your homeowner’s policy to see what is covered and what is not. There may be specific exclusions for mould damage in your policy. Your insurer or lawyer can help you understand your policy and make recommendations. If mould is not explicitly covered, you may be able to purchase “riders” or other additional insurance to get the most comprehensive protection. Typically, if sudden water damage occurs, your policy will provide coverage. This would generally extend to consequential damage such as mould. In that cases, your policy would cover the cost of repairs. However, if the problem goes unnoticed or is allowed to persist for an unduly lengthy period of time, you may jeopardize your coverage. Making a Claim Contact your insurer if you have damage from mould or if you need to pay for mould clean-up. Once your coverage is confirmed, your insurer can assist with the cleanup and repair process. A representative of your insurer will likely inspect the damage as part of the claims process. Document the situation yourself with notes and photographs. After your claims and clean-up are complete, check the area regularly to ensure all underlying issues have been resolved. Conclusion Mould in your home is a significant health hazard and it may in extreme circumstances threaten the structural safety of your home. Each season, take the time to inspect everything in your home to detect moisture and mould problems. If the pandemic has caused you to allow routine home maintenance to lapse, now is a good time to get back on track. “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-written by Student-at-Law David Heppenstall* By Fauzan SiddiquiBlog, Insurance DefenceOctober 27, 2021July 5, 2023
Different Ways to Claim For Lost Income Due to COVID-19 If you have lost your employment due to COVID-19, there are a variety of different avenues available to you to make a claim for lost income. Constructive dismissal Does reduction of wages and/or hours due to COVID-19 amount to a constructive dismissal? The courts have issued conflicting opinions. For more information, see Conflicting Jurisprudence Regarding Whether a COVID-19 Reduction of Wages and/or Hours Amounts to a Constructive Dismissal. Wrongful dismissal The maximum amount of damages that you can claim in an action for wrongful dismissal is two years, as the Ontario Court of Appeal has decided. However, as an employee, you also have the duty to mitigate their damages by seeking other employment. Further reading: Employers Must Discharge Their Onus to Prove Failure to MitigateCan I Still Claim my Bonus even though I was Wrongfully Dismissed?Income Earned by Wrongfully Dismissed Employees No Longer Automatically Deducted Under the Duty to Mitigate Canada Labour Code claims The remedy of “unjust dismissal” under the Canada Labour Code allows for potential reinstatement and also a claim for lost income. Employees must still mitigate their damages, but nonetheless, the claim can be formidable. Further reading: Canada Labour Code Adjudicator Awards Costs in Unjust Dismissal CaseThe Canada Labour Code & Employer Releases Human Rights claims In a human rights claim, for example, the lost income claim is based on “what would have happened” had the human rights violation not occurred. This may lead to a dramatic claim for a very extended period. Some human rights cases have allowed for lost income for as many as ten years. However, sometimes the same concept may lead to a very modest claim. If the employer, for example, can show that the functions of the employee were destined to be terminated due to legitimate business reasons soon after the termination, then the damage claim for lost income will be so limited. In human rights cases, an employment contract that defines a severance sum will generally have no relevance. However, if the contract sets a defined terminal date, then the damages will very likely be set by that date. Further reading: Fired because of Race? Consider a Human Rights ClaimGeneral Electric Workers Exposed to Toxic Chemicals for DecadesDenial of Employee Benefits to Working Seniors: A Charter Violation Statutory Reprisal (Occupational Health and Safety Act) Ontario has certain statutes that provide powerful relief to employees who have been terminated or otherwise adversely treated due to their compliance with the terms of statute. The term often used to describe this is “reprisal.” One such example is the Occupational Health and Safety Act which creates reporting requirements of unsafe working conditions and physical and sexual abuse amongst other obligations. It applies to all employers in the province. The framework of the statute not only prohibits such unfair conduct by an employer but also creates a reverse “onus of proof” upon the employer should the employee choose to challenge such a decision of the employer. For more information, or for inquires regarding your situation, contact our employment lawyers and mediators today. “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 LawOctober 20, 2021October 20, 2021
Bill C-10: The Future of Regulated Canadian Content (Updated) Canada’s existing legislation, the Broadcasting Act, could be on the receiving end of a makeover. Bill C-10, first introduced by Heritage Minister Guilbeault to the House of Commons in November 2020, will attempt to regulate the competition and content displayed by Canadian broadcasters such as Global, CTV, and CBC. However, it doesn’t end there. Internet streaming services, Netflix and Disney Plus, to name a few, will also be affected by this if the Trudeau Government upholds their promise in re-introducing this Bill. Bill C-10 is aimed at promoting and developing content made by Canadian artists, producers, and creators within Canada and is meant to subject streaming services to the same requirements as Canadian broadcasters. This task was initially assigned to the Canadian Radio-Television and Telecommunications Commission, otherwise known as the CRTC. The CRTC files what is and is not Canadian content and would issue fines for violations to broadcaster’s who did not comply. On implementation, the future of streaming services could drastically change, from algorithm to content. Digital platforms and social media websites could change user experience due to the Act to Amend the Broadcasting Act, placing content into further censorship mode. While social media usage and online streaming platforms promote individual expression and content, we could soon see a change in how user content expression is safeguarded. If Bill C-10 is passed, regular content could potentially limit or undermine the Canadian creative sector. There could be a risk of overly broad regulations controlling the content that Canadians stream and view. Bill-C10 would also influence digital media companies. As Canadians know, the media streaming network availability is limited to two, maybe three, major players. While in comparison, partners to the south have the unlimited possibility of choosing from when it comes to the internet, cellular, and television services. The Canadian sector has managed to monopolize media streaming all for the effort of “promoting” Canadian content. Bill-C10, in effect, could mean pigeonholing Canadians further into “choosing” which content is available. Reaction to Bill C-10 The infringement on individual speech is what critics have warned about for this Bill. It is among one of the most far-reaching plans by the Liberal government to regulate the algorithms tech companies use to display content. Modernizing the internet’s legal framework has needed reshaping and reforming, especially when considering monopoly power, taxation, and worker rights. This Bill seems to focus more on curtailing the influence of foreign culture as opposed to promoting Canadian culture through media law. The Next Step Bill C-10 has not passed, however, the Senate has provided Members of Parliament with the opportunity to revise this, as they continue to study the best way to regulate Canadian content through growing technology tools. The final steps in pushing this Bill through will include issuing policy directives by government officials to the CRTC and how they will lead the usage of instruments that have been allowed by the Bill. This will also include proceedings with stakeholders. The CRTC will have to develop ways to determine how the new regulations will continue for online undertakings. The critical questions being, who will be included in the new system and who will be exempt from it. This new Bill will inherently define the landscape of Canadian Broadcasting and its online platform partners. The support of Canadian artists and creators is crucial to Canadian culture, but how will this affect the availability of foreign content and the public’s fundamental right to freedom of expression and their right to choose the content? If you have more questions about Bill C-10, you can contact Timothy Gindi at 416 446-33340 or at Timothy.Gindi@devrylaw.ca, additionally, you can contact Marty Rabinovitch at 416 446-5826 or at Marty.Rabinovitch@devrylaw.ca. *This blog was co-authored by Angela Victoria Papeo* “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, Human Rights LawOctober 4, 2021October 14, 2021
When Selecting a Commercial Mediator, Value Breadth of Experience Over Depth Parties to a commercial dispute are generally inclined to select a specialist mediator with expert knowledge in the field of business where the parties operate. However, there’s much more to a commercial dispute than precise legal issues. Mediators with an “expertly” narrow focus are generally looking neither beyond nor beneath the problem. A broad-based background in many areas—including varied experiences with human dynamics—positions a mediator to recognize the real “heart” of the matter and increase the possibility of settlement. For example, a mediator with a background in construction law disputes and family and estates disputes is able to see more deeply into business or legal disputes. It is often the case that the root of the apparently intractable dispute is often only tangentially related to the business. In one real-world example, a fight was boiling over between business partners in the trucking industry with respect to costs associated with running the business. In another example, a former business partnership deteriorated even further after the split when one party opened up a competing business, allegedly built on the back of clients from the old shared company. The focus of every party in both of these situations was on their respective legal positions—non-compete covenants, breaches of fiduciary duty, et cetera. But, during the course of the mediations, it became clear that the core of both issues was a latent family history between the partners. Failing to recognize this unstable element in a critical situation could render it almost impossible for mediators to deal with the legal and business issues. When a case does not settle, it could be due to the mediator’s unwillingness to address and overcome the “touchy-feely” issues. Mediators who fail to pick up on clues beyond their particular area of expertise might not make the same progress as a mediator with a broad background. A mediator with a breadth of experience is prepared to acknowledge personal issues and craft a solution that preserves and restores relationships. Virtual or remote mediations conducted during the Coronavirus disease (COVID-19) pandemic pose a further challenge for mediators to perceive the unspoken indicators of problems beneath the surface of a dispute. Commercial mediators with broad experiences mediating different types of disputes in different kinds of settings are the best equipped to address the nuances behind complex problems—even through the screen. For more information, or for inquires regarding commercial mediation for your dispute, contact our commercial lawyers and mediators today. “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, MediationSeptember 23, 2021September 23, 2021