Common Law Relationship? You Do Not Have the Same Rights as Married Spouses in Ontario Defining a Spouse Under the Family Law Act Under the Family Law Act, RSO 1990, c F3 (FLA) a spouse is defined as two persons who are legally married unless otherwise noted. Common law partners are considered a spouse under certain sections of the FLA and are defined as two persons who are not married to each other and have cohabited for a period of not less than three years. However, this is not the case when awarding property rights. Under the FLA, common law partners are not entitled to the same property rights as married spouses. More specifically, common law partners are not entitled to the equalization of net family properties. Equalization of Net Family Properties Under the FLA, when a divorce is granted or spouses separate with no reasonable prospect of resuming cohabitation, the spouse whose net family property is less than the other’s is entitled to one-half of the difference between them. As discussed above, in Ontario, this right is only available for married spouses. Common law partners are not awarded these rights and must establish an interest in property when seeking to equalize property. This process can be quite complicated. The Push for Common Law Partners’ Entitlement Over the years, as common law is becoming more and more common, there has been a push for common law partners to be entitled to the same rights as married spouses in Ontario. As mentioned above, there is a process that common law partners can take in order to establish a property right. As a common law partner, you would need to make a claim for a constructive trust if you contributed to the value of an asset and believe your partner would be unjustly enriched if they were to retain the full value of this asset. This process can be complex and relies on the court process, therefore creating a lengthy delay in gaining your property entitlement. British Columbia has re-visited their old family rules and now award all of the same rights to common law partners as married spouses. So why not Ontario? Until our FLA re-visits the definition of spouse under the property regime, if you are in a common law relationship, it is important that you understand that you are not entitled to the same property rights as married spouses. For more information on this issue or other Family Law topics, please contact Kenna Bromley at Devry Smith Frank LLP at (249) 888-6641 or kenna.bromley@devrylaw.ca This blog was co-authored by law student Samantha Lawr. By AlyssaBlog, Family LawSeptember 18, 2023September 19, 2023
Ontario Court of Appeal Rules Creditors May Challenge Fraudulent Conveyances Existing Prior to the Debtor-Creditor Relationship In the recent case of Ontario Securities Commission v. Camerlengo Holdings Inc., 2023 ONCA 93, the Ontario Court of Appeal (ONCA) determined that when property is conveyed with a general intent to defraud creditors, the transfer can be contested by subsequent creditors, irrespective of their creditor status at the time of the transaction. Background The personal respondents, Fred and Mirella Camerlengo, are spouses who purchased a family home in 1988 as joint tenants. Fred is the sole director and shareholder of the corporate respondent, Camerlengo Holdings Inc. (“HoldCo”). In February 1996, Fred and his business partner established Gridd Electrical Services Inc. (“Gridd”), an electrical contracting business that operated through various corporations such as HoldCo. Both Fred and his business partner transferred their family homes to their respective spouses without any consideration. The transfers were facilitated by the same lawyer, and on the same day. Following the transfer, Fred continued residing in the family home, which Mirella occasionally mortgaged to support Fred’s business endeavours. Fred and Mirella allegedly made the transfer due to concerns about Fred’s potential exposure arising from their rapidly expanding electrical services business, which involved undertaking high-risk projects. In 2011, financial troubles arose for Fred and to address this, Fred obtained a $200,000 loan through Bluestream International Investments Inc. (“Bluestream”). Bluestream came under scrutiny from the Ontario Securities Commission (OSC) when its business associate was discovered to be engaging in fraudulent activities, including trading without registration, and unlawfully distributing securities in an investment scheme. In 2018, the OSC issued a disgorgement order against Bluestream on behalf of the defrauded investors, leading the OSC to initiate a lawsuit against Fred, Mirella and HoldCo to recover the loan amount. The OSC challenged the 1996 transfer of Fred’s interest in the family home to Mirella, alleging that the transfer was made fraudulently, with the intent of avoiding future creditors. Motion to Strike Fred and Mirella brought a motion to strike the statement of claim on the basis that the OSC’s pleadings did not disclose a reasonable cause of action. The motion was dismissed, except with respect to the claims of fraudulent conveyance. The motion judge considered section 2 of the Fraudulent Conveyances Act (FCA), which states: Every conveyance of real property or personal property and every bond, suit, judgment and execution heretofore or hereafter made with intent to defeat, hinder, delay or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, penalties or forfeitures are void as against such persons and their assigns. The motion judge concluded that because Bluestream, and consequently OSC, were not creditors when Fred transferred his interest in the home to Mirella, they did not fall under the category of “creditors or others” per section 2 of the FCA. Court of Appeal overturns Lower Court Decision The Court of Appeal (ONCA) overturned the motion judge’s decision, ruling that the law against fraudulent conveyances can still apply to transfers made to avoid potential future debts. Citing IAMGOLD Ltd. v. Rosenfeld, [1998] O.J. No. 4690, the ONCA clarified that a subsequent creditor, one who was not a creditor at the time of the transfer, can challenge the transfer if it was intended to “defraud creditors generally, whether present or future.” To support the inference of an intention to defraud creditors, the ONCA outlined various “badges of fraud,” such as the debtor’s precarious financial state at the time of the transaction, the existence of family or close relationships between parties, divestment of a substantial portion of assets, and evidence of defeating, hindering, or delaying creditors. The OSC presented several relevant facts in their plea, which the ONCA found compelling in inferring an intention to defraud creditors: Fred transferred the property to his wife without consideration; The transfer occurred after 16 years of joint ownership and 4.5 months after incorporating Gridd with his business partner; Fred and his business partner used the same lawyer to transfer their family homes to their wives simultaneously; The transfer coincided with Fred’s concerns about personal liability from his rapidly expanding high-risk electrical contracting business; and Despite the transfer, Fred continued treating the property as his own. Based on the above, the ONCA found sufficient grounds to support the inference of an intention to defraud creditors, allowing the OSC’s claim to proceed. Conclusion The ONCA’s ruling has significant implications for cases where individuals or entities attempt to shield assets from potential liabilities by transferring them to others (such as spouses and children), and it highlights the importance of considering the broader intent behind such transfers when assessing their validity. It is important to note that during the oral hearing, the respondents attempted to raise an argument about the statute of limitations. However, since this argument was not presented in the lower court, new arguments can only be introduced on appeal with special permission. The ONCA, in this case, declined to grant permission for the introduction of the new argument. For more information regarding Bankruptcy, Collections, Fraud, and/or Trusts related topics, please contact Hyland Muirhead at Devry Smith Frank LLP at (416) 446-5092 or hyland.muirhead@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 Articling Student, Owais Hashmi. Sources: Ontario Securities Commission v. Camerlengo Holdings Inc., 2023 ONCA 93 By AlyssaBlog, Collections and Mortgage RecoverySeptember 4, 2023September 5, 2023
Views of the Child – Should I Get a Voice of the Child Report? We all know that children suffer the most in family law proceedings. However, giving weight to a child’s preferences in the proceedings can give them a sense of autonomy and control of the situation. As a result, the provincial Children’s Law Reform Act and the federal Divorce Act both emphasize that courts must consider the views and preferences of the child when it comes to determining their best interests, in accordance with the child’s age and maturity.[1] This is not an easy task; the Ontario Court of Appeal acknowledged that: It has always been a challenge for family law courts to find a way for children to express their views without exposing them to further trauma or causing more damage to the family. Those who work in the family law system are all too aware that children remain part of the family long after a judicial decision is reached. The process of determining the child’s true wishes and preferences requires delicacy, for to undertake the process without expertise may further hurt the child and fracture family relationships.[2] The courts have approached this challenge in various ways. This article will discuss one such method: Voice of the Child Reports. What is a Voice of the Child Report? A Voice of the Child Report (VOC) is a short report written by an expert clinician or lawyer for the court which summarizes a child’s views, preferences, and statements on a particular issue in a determination of decision-making responsibility or parenting time. This report is often only completed for children over the age of seven, as it can be difficult for children under that age to meaningfully communicate their views. A VOC does not include: formal interviews of the parents; observation visits of the child and parents; gathering of information from third parties, such as teachers and family doctors; disclosure meetings; or recommendations Courts have generally been receptive of this new measure. VOCs are considered to be “an effective and efficient process for ensuring the right of the child to participate in proceedings that affect them and for fulfilling the court’s mandate to consider their views and preferences.”[3] Aside from testifying in court or speaking directly to a judge in private, which can be intimidating and traumatizing for a child, VOCs are one of the few methods which allow courts to receive direct information on the child’s preferences.[4] A clinician of the Office of the Children’s Lawyer (OCL) may also complete a more detailed Children’s Lawyer Report, or a s. 112 assessment.[5] In this report, the clinician is required to meet with the parents and child; observe the child with the parent; contact other adults in the child’s life, like teachers, doctors, day care workers, and therapists; and write a report with details of their investigation and recommendations. This report is more time-consuming and expensive than a VOC and takes approximately 90 to 120 days to complete, compared to 30 days for a VOC. How do I Obtain a VOC? To obtain a VOC from the OCL, you must complete the following steps: Request from the Court You must first obtain a court order requesting that the OCL intervene and provide a VOC. The court will define the issues to be addressed in the report via a Voice of the Child Endorsement Form. Complete Intake Form Upon receiving the order, the parties must complete a Voice of the Child Intake Form and send it to the OCL within one business day of the order. The intake form can be emailed to OCL.LegalDocuments@ontario.ca or faxed to 416-314-8050. If the parties complete the intake form immediately after the order is made before leaving the courthouse, then the court staff can send the court order and completed intake form to the OCL together. Acceptance of Case by OCL When the OCL receives the court order and intake form, they must decide whether to accept or refuse the case. The OCL will notify the parties and the referring judge of their decision in writing. If accepted, an OCL clinician will be assigned to the case. If the OCL refuses the case, then you can still obtain a VOC by retaining your own expert or children’s lawyer and paying for the report yourself. Contact from Clinician After receiving the assignment, the clinician will contact the parties involved to introduce themselves, describe the VOC process, request a copy of all relevant court documents and endorsements, gather information about the referral, and arrange a time and place to interview the child. Interviews with Child The child will attend two interviews with the clinician on two separate days. At the end of each interview, the clinician will review the child’s statements with them to ensure that they accurately reflect their views. Notification of Final Report The clinician will inform the parties when the interviews have been completed. The VOC will be filed with the court and sent to the parties within 30 days of the clinician’s initial involvement with the case. After the report is completed, OCL’s involvement with the case will end. Who Can Write a VOC? If the OCL agreed to be involved in your case, then the VOC will be written by an OCL expert. The OCL expert can be a clinician or a children’s lawyer with expertise in the areas of child development and children in families with conflict. You can also hire a non-OCL clinician to write a VOC for you. Here, it is important that the writer is a neutral and non-biased third party. Courts have rejected the parties’ choices to write a VOC when they had a pre-existing relationship with the child, a professional relationship with one of the parties, or had already rendered opinions or recommendations in the proceedings.[6] Furthermore, a non-clinician should ideally be a children’s lawyer sitting on the personal rights panel for the OCL. In Stefanska v Chyzynski,[7] after the OCL declined involvement due to lack of resources, the mother retained a lawyer to write the report. This lawyer only practiced family law in a limited capacity, was not an expert in child psychology, and had never prepared a VOC before. Her expertise was limited to a three-hour consultation from a child and family therapist who had prepared VOCs before. Justice Horkins emphasized that it was preferable that the VOC was prepared by a trained professional. However, as the report is only a “vehicle to present the views of the children to the Court without any evaluation”, he reluctantly admitted the report.[8] Despite this ruling, if you want your VOC to carry more weight, it is best to do your research and retain a professional with experience in preparing VOCs. When Should I get a VOC for My Child? A VOC may be appropriate in the following circumstances: When your child is an appropriate age. VOCs are generally not available for children under the age of seven, although this cut-off is not strictly enforced and is highly dependent on the individual child’s maturity.[9] A VOC can be created so long as the child is capable of conveying their preferences in a meaningful way. VOCs also may not be as useful for older teenagers, as courts are often reluctant to make parenting time decisions for children close to the age of majority.[10] When you and your former partner disagree about your child’s preferences. VOCs allow parents to get a better understanding of their child’s views and preferences. This can help resolve issues surrounding parenting time and decision-making responsibility earlier in the litigation process, which saves time, costs, and stress for everyone involved. When your child wants to express their views. A VOC will be much more impactful if your child is interested in communicating their views and preferences to the writer. As noted above, this experience may give your child a sense of control and autonomy in the situation without feeling like they’re taking a parent’s side. While VOCs may be less useful in cases where there are issues of parental alienation[11] or allegations of abuse or neglect, for the vast majority of parenting and decision-making disputes, a VOC is an excellent way for your child to feel heard and acknowledged in the court process. If you have questions about obtaining a VOC or another other family law matter, please visit our website or contact Jillian C. Bowman from Devry Smith Frank LLP at 249-888-4639 or Jillian.Bowman@devrylaw.ca. This blog was co-authored by law student, Leslie Haddock. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” [1] For example, see Children’s Law Reform Act, RSO 1990, c C12, ss 24(3)(e) and 64(1) and Divorce Act, s 16(3)(e). [2] Ontario (Children’s Lawyer) v Ontario (Information and Privacy Commissioner), 2018 ONCA 559 at para 65. [3] Byers v Byers, 2023 ONSC 297 at para 21 [Byers]. [4] Ibid at para 22. [5] This assessment is provided for in the Courts of Justice Act, RSO 1990, c C43, s 112(1). [6] See Svirsky v Svirsky, 2013 ONSC 5564 at para 27 and Religa v Nesrallah, 2017 ONSC 1491 at paras 16-18. [7] Stefanska v Chyzynski, 2020 ONSC 3048. [8] Ibid at para 93. [9] See Byers, supra note 3 at para 25, where Justice Tellier ordered a VOC for a six-year old child. [10] In Medjuck v Medjuck, 2019 ONSC 3254 at paras 28-29, Justice Kristjanson refused to order a VOC for a seventeen-year old who chose to reside with his father and have no contact with his mother. [11] For instance, see ibid at paras 31-32 and Canepa v Canepa, 2018 ONSC 5154 at para 23. By AlyssaBlog, Family LawAugust 28, 2023August 24, 2023
DSF is Recognized in Best Lawyers 2024 Edition Devry Smith Frank LLP (DSF) is proud to announce that we have been recognized by Best Lawyers in Canada for the 2024 Edition with 7 of our lawyers ranked across various practice areas. The lawyers being recognized are listed below: David Lavkulik – Personal Injury Litigation Diana L. Solomon – Family Law George O. Frank – Personal Injury Litigation Jennifer K. Howard – Family Law Marc G. Spivak – Personal Injury Litigation Marty Rabinovitch – Labour and Employment Law – Recognized for the first time in 2024 edition of Best Lawyers Todd E. Slonim – Family Law We are grateful for this recognition and will continue to strive to provide the best service for our clients. Best Lawyers is the legal profession’s oldest peer-review publication and garners immense respect as the recognition signifies peer approval. Lists of outstanding lawyers arise from thorough evaluations where legal experts confidentially evaluate their colleagues. For over 40 years, this top peer-review publication acknowledges leading attorneys across more than 100 practice areas, chosen for outstanding feedback. “Lawyer of the Year” is awarded to one attorney in each practice area and metropolitan area, further amplifying its significance. Please visit their website for more details: www.bestlawyers.com By AlyssaBlog, Employment Law, Family Law, Labour Law, Personal Injury, UncategorizedAugust 25, 2023August 25, 2023
New Tort of Family Violence Rejected at Court of Appeal In a decision highly anticipated by family law litigants and practitioners across the Province, the Ontario Court of Appeal has rejected the newly created tort of family violence. This novel tort was created last year in the precedent setting decision of Ahluwalia v Ahluwalia,[1] decided by Brampton judge, Justice Renu Mandhane. Justice Mandhane ordered that a man pay his former wife $150,000 in damages for years of physical, financial, and verbal abuse. The decision was appealed shortly thereafter. In her reasons released in July 2023, Justice M. L. Benotto of the Court of Appeal began her judgment by acknowledging the problem of intimate partner violence in Canadian society: Intimate partner violence is a pervasive social problem. It takes many forms, including physical violence, psychological abuse, financial abuse and intimidation. In Canada, nearly half of women and a third of men have experienced intimate partner violence and rates are on the rise.[1] What was once thought to be a private matter is now properly recognized for its widespread and intergenerational effects.[2] Statistics support this conclusion: in 2021, there were 127,082 victims of family violence who reported the crime to the police. However, as many incidents of such violence go unreported, the true number is likely much higher. Nevertheless, Justice Benotto concluded that the creation of a novel tort was unnecessary, as existing torts and remedies are sufficient to address the harms caused by intimate partner violence. Facts The parties married in India in 1999 and their first child was born 18 months later. In September 2001, the husband, immigrated to Canada. The wife and child arrived in Canada soon after in March 2002. The parties had their second child in 2004 and bought a home in Brampton in 2005. In July 2016, the couple separated. The parties’ children largely refused to see their father following the separation. The trial judge accepted the wife’s evidence that her husband was extremely abusive during their marriage. She recounted instances of physical violence, verbal abuse, financial threats and controlling behaviour. The husband was criminally charged in September 2021 with assault and uttering death threats against his former partner. The wife brought an action for statutory relief under the Divorce Act for divorce, child support, spousal support, and equalization of property, as well as a claim in tort for $100,000 in damages for the husband’s abusive conduct during their marriage. The Trial Decision Justice Mandhane agreed with the wife’s position that the Divorce Act did not go far enough in addressing the issue of family violence. In fact, the Act specifically prohibits courts from considering spousal misconduct in spousal support orders.[3] She maintained that “[t]he no fault nature of family law must give way where there are serious allegations of family violence that create independent, and actionable harms that cannot be compensated through an award of spousal support.”[4] The Creation of the Tort of Family Violence As a result, Justice Mandhane recognized a new tort of family violence. To establish liability under this new tort, the plaintiff must prove the existence of conduct by a family member, within the context of a family relationship, that: is intentionally violent or threatening; or constitutes a pattern of coercive and controlling behaviour; or causes the plaintiff to fear for their own safety or the safety of another.[5] Justice Mandhane emphasized that damages would be based on patterns of violence, not individual incidents, and that mere unhappy or dysfunctional relationships are insufficient. Damages Having accepted the wife’s evidence of her husband’s abusive conduct during their marriage, Justice Mandhane turned to damages. She awarded $150,000 to the wife in total, with $50,000 each for compensatory, aggravated, and punitive damages. Issues on Appeal The husband appealed Justice Mandhane’s decision. There were three main issues on appeal: Did the trial judge err in creating a new tort of family violence? Should the court recognize the narrower tort of coercive control? Did the trial judge err in assessing damages? The appellant objected to the recognition of the novel tort. He argued that it was poorly constructed, too easy to prove, would open the floodgates for claims, and would constitute a substantial change to the law that is best left to the legislature. In contrast, the respondent maintained that the creation of the novel tort was necessary to address the harm caused by family violence. In the alternative, if the new tort is too broad, she proposed a narrower tort of coercive control. (1) Did the Trial Judge Err in Creating the Tort of Family Violence? Justice Benotto concluded that Justice Mandhane did err in creating the tort of family violence. The common law changes slowly and incrementally, not quick and dramatically, and significant change is best left to the legislature to implement.[6] Moreover, novel torts will not be recognized in any of the following circumstances: where there are adequate alternative remedies; where the tort does not reflect and address a wrong visited on one person by another; or where the change to the legal system from the new tort would be indeterminate or substantial.[7] The first scenario posed the most problems for the tort of family violence. In the trial decision, Justice Mandhane argued that while some existing torts overlapped with the tort of family violence, they did not fully capture the cumulative harm of family violence: …existing torts do not fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence cases and which creates the conditions of fear and helplessness. These patterns can be cyclical and subtle, and often go beyond assault and battery to include complicated and prolonged psychological and financial abuse. These uniquely harmful aspects of family violence are not adequately captured in the existing torts. In general, the existing torts are focused on specific, harmful incidents, while the proposed tort of family violence is focused on long-term, harmful patterns of conduct that are designed to control or terrorize… In the context of damage assessment for family violence, it is the pattern of violence that must be compensated, not the individual incidents.[8] Justice Benotto disagreed. The appellant’s abusive conduct satisfied the requirements for the torts of battery, assault, and intentional infliction of emotional distress. Moreover, in determining the quantum of costs for such tortious conduct, courts have taken into account patterns of abusive behaviour. As such, there was no need to create a tort of family violence. (2) Should the Courts Recognize a Tort of Coercive Control? If the court would not recognize the tort of family violence, the respondent suggested a narrower tort of coercive control. Coercive control would include “emotional and psychological harm, financial abuse, social isolation, intentional damage to property, deprivation of necessities of life, or micro-regulation of daily activities.”[9] The respondent proposed that the tort of coercive control would not require proof of harm, but would be established if a person: (a) in an intimate relationship, (b) inflicted a pattern of coercive and controlling behaviour, and (c) which, cumulatively, was calculated to induce compliance, create fear and helplessness, or cause harm to the victim.[10] Justice Benotto rejected this submission. The tort of coercive control is highly similar to the existing tort of intentional infliction of emotion distress. Moreover, elimination of the requirement that the plaintiff show harm would constitute a substantial change to the law that would require legislative intervention. As such, the Court of Appeal declined to recognize a tort of coercive control. (3) Did the Trial Judge Err in Assessing Damages? While this case had major implications for the practice of family law in Ontario, it was much less impactful for the parties involved in terms of the damages. Justice Benotto upheld trial judge’s award of compensatory and aggravated damages in the amount of $100,000, due to the high degree of deference given to trial judges in awarding costs. However, she allowed the appeal in regards to the additional $50,000 for punitive damages. Justice Benotto pointed to the principles for awarding punitive damages established in Whiten v Pilot Insurance. In this case, the Supreme Court held that punitive damages were highly exceptional remedies and should only be awarded where compensatory damages are insufficient.[11] Here, the compensatory and aggravated damages, in the amount originally sought by the applicant, were sufficient to demonstrate the court’s disapproval of the appellant’s conduct. Conclusions While this decision eliminated one avenue of recourse for survivors of family violence in Ontario, it should not be viewed as a loss. The Court recognized the harm of family violence, the need for judicial condemnation of the offenders, and the need for compensation for the survivors. In dismissing the need for novel torts, the Court also affirmed the efficacy of existing torts like battery, assault, and intentional infliction of emotional distress in addressing family violence and highlighted to survivors the legal options available to them. If you have questions about your family law matter, please visit our website or contact Jillian C. Bowman from Devry Smith Frank LLP at 249-888-4639 or Jillian.Bowman@devrylaw.ca. This blog was co-authored by law student, Leslie Haddock. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” [1] 2022 ONSC 1303 [Ahluwalia, ONSC]. [2] 2023 ONCA 476 at para 1 [Ahluwalia, ONCA]. [3] Divorce Act, RSC 1985, c 3, s 15.2(5). [4] Ahluwalia, ONSC, supra note 1 at para 46. [5] Ibid at para 52. [6] Merrifield v Canada (Attorney General), 2019 ONCA 205 at paras 20-21. [7] Neysun Resources Ltd v Araya, 2020 SCC 5 at para 237. [8] Ahluwalia, ONSC, supra note 1 at para 54. [9] Ahluwalia, ONCA, supra note 2 at para 103. [10] Ibid at para 104. [11] Whiten v Pilot Insurance, 2002 SCC 18 at para 94. By Fauzan SiddiquiBlog, Family LawAugust 21, 2023August 9, 2023
Global Talent Stream: How to Fill High-Skilled Positions at Canadian Companies with Temporary Foreign Workers The Global Talent Stream (“GTS”) operates under the Temporary Foreign Worker Program (“TFWP”) as an efficient way for innovative Canadian firms to acquire the top foreign talent to fill a particular role when there is a shortage of domestic workers in that area. All those hiring through the GTS, must get a Labour Market Impact Assessment (“LMIA”). An LMIA will confirm whether there is truly a need for a temporary foreign worker (“TFW”) due to the absence of Canadians or permanent residents who can fill the position that an employer is hiring for. Before applying to hire through the GTS, make sure that you need an LMIA. Companies looking to transfer highly skilled or managerial employees to its affiliate in Canada can avoid the LMIA process. Program Eligibility If you need an LMIA, then you can hire through the GTS. There are two categories to which employers can apply for the GTS: Category A and Category B. Category A To be eligible for Category A, an employer must meet two criteria: A designated partner of the GTS has referred them to the program; and The employer is hiring an individual to fill a unique and specialized position whose talent will help the employer “scale-up and grow”.[i] WHAT DOES “UNIQUE AND SPECIALIZED” MEAN? There are several markers of a unique and specialized position: Compensation for a unique and specialized position will be the higher of an annual base salary of at least $80,000.00 ($38.46/hour), or the prevailing wage; Advanced knowledge of a particular industry; and An advanced degree in one of the employer’s areas of specialization, and/or at least five years of experience in this specialized field. Essentially, an individual with unique and specialized talent would earn a higher-than-average wage and be extremely knowledgeable of the innovative field, either because of their education or job experience. Category B Category B, on the other hand, does not require referrals. An employer applying under this category will instead be looking to hire a highly skilled TFW to fill a position in one of the high-demand occupations mentioned on the Global Talent Occupations List. How to Apply for an LMIA Other than in Quebec, British Columbia, and Manitoba – for which certain parts of the GTS application are unique to those provinces – the process of hiring through the GTS is the same across Canada. If you are an eligible employer – either under Category A or Category B – and you need an LMIA, these are the steps to follow to get permission from Employment Development Services Canada (“EDSC”) to hire a TFW for your open position: Pay your processing fees; Complete your Labour Market Benefits Plan (LMBP) The company must commit to at least one mandatory benefit and two complementary benefits in its LMBP; The LMBP will be negotiated with a program officer; Upon LMBP approval, the GTS LMIA can proceed. Review and ensure your position abides by the GTS requirements for Wages; Business legitimacy; Duties and conditions; Health insurance; Workplace safety; Language; Employment agreements; and, if applicable Unionized positions. Gather your supporting documents and apply for an LMIA through the portal. Note that if you have not employed a TFW within the previous six years of your impending LMIA application, the EDSC considers you to be a new employer, which requires additional steps.[ii] The Results of an LMIA An LMIA will yield one of two results: positive or negative. A positive LMIA means that EDSC has determined that hiring a TFW in this circumstance will either have a positive or neutral impact on the Canadian labour market.[iii] A negative LMIA means the opposite and will be based on a number of aggravating factors.[iv] Only those employers who receive a positive result may hire talent through the GTS. Conclusion The information contained in this blog does not constitute legal advice. Please speak to an immigration lawyer if you have any questions/concerns relating to this blog or if you need help with an immigration law matter. [i] Program requirements for the Global Talent Stream: https://www.canada.ca/en/employment-social-development/services/foreign-workers/global-talent/requirements.html#h19 [ii] New employers: https://www.canada.ca/en/employment-social-development/services/foreign-workers/global-talent/requirements.html#h6:~:text=on%20your%20behalf.-,New%20employers,-Employers%20who%20haven%E2%80%99t [iii] Temporary Foreign Worker Program (TFWP): Positive Labour Market Impact Assessment (LMIA) Employers List: https://open.canada.ca/data/en/dataset/90fed587-1364-4f33-a9ee-208181dc0b97 [iv] Temporary Foreign Worker Program (TFWP): Negative Labour Market Impact Assessment (LMIA) Employers List: https://open.canada.ca/data/en/dataset/f82f66f2-a22b-4511-bccf-e1d74db39ae5 By AlyssaBlog, ImmigrationAugust 14, 2023August 9, 2023
Canada Announces Express Entry Invitations for Skilled STEM Immigrants François-Philippe Champagne, the Minister of Innovation, Science and Industry, on behalf of Sean Fraser, the Minister of Immigration, Refugees and Citizenship recently announced a new STEM round for the category-based selection in the Express Entry system which opened on July 5, 2023. As immigration accounts for nearly 100% of labour force growth in Canada, policy-makers hope that this will draw in talented candidates and address labour shortages in Canada’s science and technology sector. What is Express Entry? Express Entry is Canada’s online application management system for permanent residency applications for skilled workers. Three immigration programs are managed through Express Entry: Canada Experience Class Skilled workers with Canadian work experience are eligible for this class. You must: have at least one year of skilled work experience in Canada in the last three years before your application; and your work experience must have been gained while under temporary resident status with authorization to work. You are not eligible if: you’re a refugee claimant in Canada; you were working without authorization; or your work experience was gained while you did not have temporary resident status in Canada. Federal Skilled Worker Program Skilled workers with foreign work experience are eligible for this class. You must meet the minimum requirements for skilled work experience, language ability, and education. If so, Immigration Canada will assess your eligibility based on the following factors and assign you a score out of 100: age; education; work experience; the presence of a valid job offer; English or French language abilities; and adaptability to life in Canada. Federal Skilled Trades Program Skilled workers who are qualified in a skilled trade are eligible for this class. You must: meet the minimum language requirements; have at least two years of full-time paid work experience (or four years of part-time paid work experience) in a skilled trade in the past five years before you apply meet the job requirements for that skilled trade set out in the National Occupational Classification (besides a certificate of qualification); and have a valid job offer for full-time employment lasting a minimum of one year, or a certificate of qualification in that skilled trade issued by a Canadian federal, provincial, or territorial authority. If you are eligible under one of these programs and submit your profile to Express Entry, you’ll be ranked using the Comprehensive Ranking System (CRS). This points-based system assesses your profile and ranks it in the Express Entry pool where you’re compared to other candidates. To receive an invitation to apply, you must have a score above the minimum threshold for your round of invitations. Candidates with the highest scores are invited to apply and have sixty days to submit their applications. Most complete applications with supporting documentation are processed within six months. Category-Based Selection Earlier this year, on May 31, 2023, Minister Fraser announced the launch of a new category-based selection for the Express Entry system. This allows Canada to issue invitations to candidates with in-demand skills, training, or language abilities, to address Canadian labour shortage needs. When there is a category-based round of invitations, the top-ranking candidates in the Express Entry pool who fall into the selected category will be invited to apply for permanent residence. In 2023, category-based selection invitations will focus on candidates who fall under the following categories: strong French language proficiency; healthcare occupations; STEM occupations; trade occupations; transport occupations; and agriculture and agri-food occupations. Immigration Canada chooses these categories based on labour market data and projections and feedback received from provinces, territories, and other stakeholders in Canada. They will be responsible for reporting to Parliament on the categories chosen, the process of and reasons for choosing them, how the categories are established, and the number of invitations issued for each category. STEM Round for Category-Based Selection The STEM round in early July is the first of the new category-based selection invitations. It focuses on candidates that can drive growth and innovation within Canada’s science and technology sector, including data scientists, mathematicians, statisticians, actuaries, software developers and programmers, and electrical and electronics engineers. Minister Fraser says that: Canada’s ability to remain at the cutting edge of science, technology, engineering and mathematics depends largely on our country’s ability to recruit top talent from around the world. I’m excited to announce this STEM category-based selection round with my colleague, Minister Champagne, which will increase permanent residence for skilled workers with STEM experience. We look forward to welcoming these talented and innovative newcomers to our country. This announcement furthers Canada’s efforts in their recently announced Tech Talent Attraction Strategy. Here, Canada seeks to use immigration to meet their innovation priorities and secure their place as a world leader in new technologies. Other strategies include introducing new work permits for H-1B visa holders, a new Innovation Stream to the International Mobility Program, reducing backlogs for the start-up visa, a two week processing time for the Global Skills Strategy, and allowing digital nomads working remotely to work in Canada for up to six months with only visitor status. This is only the first of Canada’s new category-based selection round of invitations, which are scheduled to continue throughout the year. On July 7, 2023, the Minister of Official Languages, Ginette Petitpas Taylor, announced the first Francophone round of category-based selection. More details on these initiatives are set to be announced over the coming weeks. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. For more information about immigration and your specific circumstances, please contact a lawyer in our Immigration Law Group.” This blog was co-authored by law student, Leslie Haddock. By Fauzan SiddiquiBlog, ImmigrationAugust 7, 2023August 15, 2023
Understanding Islamic Wills and Inheritance Laws: A Guide for Muslims in Ontario A Will is a legal document that sets out an individual’s wishes and instructions regarding the distribution of their assets and the management of their affairs after their death. In Islam, the wealth of any individual is divided into two parts: Fara’id and the Wasiyyah. Fara’id represents two-thirds of the deceased’s property and must be divided as per the Shari’a (Islamic Laws). The Wasiyyah is a part of your Will that you are free to allocate any way you see fit. Muslims have a religious obligation whilst alive to ensure their property will be distributed according to Islamic law and ensure certain responsibilities be carried out after their death. In Ontario, if a person dies without a Will, Islamic or otherwise, his or her property will be divided according to the rules set out in the Succession Law Reform Act. Our blog outlining the requirements for a valid Will in Ontario (Formal or Holographic) can be found here. Similar to a secular Will, an Islamic Will includes the following provisions: Appointing an executor to manage your estate and distribute your estate after death; Appointing a guardian to care for your children and manage their inheritance until they reach adulthood; leaving assets from your estate to charitable causes or other family members; and Specify any debts that must be paid upon your death. An Islamic Will also includes provisions that specifically address: Burial procedures; Preferences regarding autopsy and organ donation; Outstanding moral and religious obligations to be paid out of the estate; Permissible bequests (Wasiyyah) of up to one-third of the estate in total; and Division of assets according to Islamic inheritance rules. Islamic Inheritance Rules (Generally) The Fara’id is divided amongst three main types of heirs in Islam: Quota-heirs: entitled to specific shares (i.e., husband/wife, son, daughter, father, and mother); Residuaries: usually a combination of relatives that inherit as residuaries after the shares of the Quota-heirs is distributed (i.e., siblings, grandparents, nieces and nephews); and Extended family members: any blood relative who is not a quote-heir or a residuary (i.e., paternal and maternal aunts and uncles and their descendants) The Fara’id separates inheritance into “fixed” and “variable” categories. Typically, fixed shares will be given to one’s spouse and parents, with varying shares given to the children. The following is the inheritance percentage that each quota-heir receives: The surviving husband gets one-half of the deceased’s assets, or one-fourth of the assets if he has children; The surviving wife receives one-fourth of the deceased’s assets, or one-eighth of the assets if she has children; One-sixth of a share will go to each of the deceased’s parents. If the deceased left behind children, sons and daughters will each receive a 2:1 share of the remaining assets. The rationale being that the male’s portion is given with the understanding that he will spend it on the entire family as needed. There are no such restrictions on a daughter’s inheritance; and The amount of a person’s Wasiyyah cannot exceed one-third of their total possessions. Conclusion It is important to note that interpretations and practices of Islamic inheritance rules may differ across Islamic schools of thought and legal jurisdictions. Consultation with a qualified Islamic scholar in conjunction with a lawyer is advised to ensure proper application of these laws in specific cases. For more information regarding Wills, Trusts, and/or Estates related topics, please contact Kelli Preston at Devry Smith Frank LLP at (416) 446-3344 or kelli.preston@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 Articling Student, Owais Hashmi* Sources: [1] https://districts.ecourts.gov.in/sites/default/files/jcj%20palakondawrkshp1.pdf [2] https://www.rhjdevonshire.co.uk/the-islamic-succession/ [3] https://islamicinheritance.com/islamic-inheritance-guide/ [4] https://www.islamicwillsusa.com/islamic-inheritance/ By Fauzan SiddiquiBlog, Wills and EstatesJuly 31, 2023July 31, 2023
Post-Separation, Who Gets the Frozen Embryos? According to the Canadian Fertility and Andrology Society, approximately one in six Canadians experience infertility. As a result, more and more Canadians have turned to various forms of assisted reproduction, such as in vitro fertilization (IVF). This is an increasingly important means of building a family especially for same-sex couples. With advancements in reproductive technology, the availability of government funding, and the increased visibility of fertility treatments, in popular culture, assisted reproduction has become more than an option for the wealthy; it is now a realistic avenue for the average couple. Over 7,000 children are born through IVF in Canada every year. As of 2014, one to two percent of live births in Ontario are from infertility treatments. However, as the accessibility of assisted reproduction increases, so do disputes over what happens to the leftover reproductive material following the end of a relationship. Is reproductive material treated as property or something more? Reproductive Material as Property Traditionally, Canadian courts considered reproductive material to be property. In JCM v ANA, a British Columbia court was asked to determine the ownership of “sperm straws” following the divorce of a lesbian couple.[1] During their relationship, each partner gave birth to a child using the sperm from the same anonymous donor. After separating, one of the women wanted to use the remaining sperm to impregnate her new partner, while the other wanted the sperm destroyed. The court found that the parties were the joint owners of the sperm and that they should be divided along with the rest of their matrimonial property. After the straws were divided, each couple could choose to use them or destroy them.[2] Likewise, Lam v University of British Columbia decided that sperm was property for the purposes of provincial legislation governing the storage of goods.[3] KLW v Genesis Fertility Centre also found that the reproductive material of the applicant’s deceased husband was property under provincial legislation governing personal property passed through intestacy.[4] Under this approach, if you could obtain the reproductive material used by you and your partner after your relationship ended, you were free to do whatever you want with it. This simplistic approach raised several policy concerns given evidence that people are confused about their options in regards to reproductive material, often change their minds over time, and rarely consider what should happen to reproductive material after separation, or their partner’s death or loss of capacity. Transition to a Consent-Based Regime The traditional contract-based approach changed dramatically with the landmark decision SH v DH and the rise of the consent-based regime.[5] The case arose out of the following dispute: a couple purchased donated eggs and sperm from a company in Georgia, which they used to create two viable embryos. An Ontario fertility clinic implanted one of the embryos into the respondent and she gave birth to the parties’ son. After the parties separated, the respondent wanted to use the remaining embryo to have another child, while the applicant wanted to have it donated. The trial judge held that the dispute should be governed by the law of contracts.[6] The contract with the Ontario clinic stated that the patient (the respondent, in this case) could decide what happened to the embryo in the event of the couple’s separation. As such, the respondent was free to use the embryo however she wanted. The decision was overturned on appeal. The Ontario Court of Appeal relied on the consent-based regime set out under the Assisted Human Reproduction Act (AHRA) and the Consent for Use of Human Reproductive Material and In Vitro Embryos Regulations (Regulations). This regime included terms which the parties could not contract out of; as such, it prevailed over the Ontario clinic’s contractual terms. Under the legislative regime, subsection 8(3) of the AHRA precludes the use of an embryo for any purpose unless the donor has given written consent. Part 3 of the Regulations provides further clarification on the necessity of “consent”, including: A “donor” refers to: individual(s) for whose reproductive use an in vitro embryo is created; or a married or common-law couple for whom the in vitro embryo is created, regardless of the source of the reproductive material used in its creation. If the donor is a couple, then the embryo can only be used for purposes that both parties consented to. Written consent is required from the donor before the embryo is used. Donors can consent for the embryos to be used for one or more of the following purposes: the donor’s own reproductive use; a third party’s reproductive use; improving assisted reproduction procedures; and providing instruction in assisted reproduction procedures, or a specific research project. If a donor wishes to withdraw their consent, it must be in writing and the person intending to use the embryos must be notified of the withdrawal of consent. If the donor is a couple, then the consent can be withdrawn by either spouse or common-law partner at any time. In this case, the respondent was not allowed to use the embryo to have another child without the express consent of her former partner, the applicant, even though the applicant’s reproductive material was not used. It is critical to note that subsection 10(3) of the Regulations provides that, if only one of the individuals in the couple used the genetic material of only one of them when the embryo was created, that individual is considered to be the donor if the couple breaks up before the embryo is used. This would have led to a very different conclusion in SH v DH. Implications Subject to subsection 10(3) of the Regulations and following SH v DH, if a couple creates embryos throughout the course of their relationship, whether or not their own reproductive material is used, those embryos cannot be used by either party after the relationship ends without the other’s consent. Other courts have followed this decision for other kinds of reproductive material besides embryos. In LT v DT Estate, the British Columbia Court of Appeal denied an applicant’s request to harvest her late husband’s sperm.[7] Relying on subsection 8(2) of the AHRA, the court held that you cannot remove reproductive material from a donor’s body posthumously without their written consent, which the donor did not provide. These cases and provisions have effectively ended the property-based approach to reproductive material in Canada. The courts in Canada have confirmed that it is a consent-based regime in regards to reproductive material – regardless of ownership, if your former partner does not consent, then the reproductive material cannot be used, subject to the exception in subsection 10(3) of the Regulations. Interestingly, one area of fertility law which is gaining increased traction is the donation of embryos. In receiving embryos which are being gifted and drafting the agreements which secure that gift, couples should be cognizant of the need to obtain consent from both donors before the transfer is made. What Couples Should Understand Before Creating Embryos As in many cases of separation and divorce, couples, in love and anxious to have children, do not think through all of the implications of access to their embryos following the dissolution of the partnership. There is a natural tendency to want to create children who have a biological link to existing children. Not being able to use embryos you have created can lead to heart break or further animosity between partners now estranged. Prior to creating any embryos, all persons engaged in the process of reproductive technology should make themselves aware that a consent-based system means that you generally cannot use embryos without the consent of the other. Where the embryos have been created with the genetic material of only one of the couple the other person should be aware that the “donor” in that situation will have access to the embryos, potentially freezing out the non-donor while creating siblings for their child(ren). This is important for fertility clinics as well. Clinics must explain these implications to their clients and provide them with documentation to sign which sets out that consent may be withdrawn at any time and that, where this happens, the other partner is left with no recourse. Similarly clinics can provide an option for consent where the surviving partner after a spouse dies. Finally, after separation all persons should immediately as possible follow up with the clinic to provide instructions regarding their consent. Clinics must be vigilant in ensuring that one party does not go around the other to obtain the remaining embryos. This author is aware of one situation where the mother falsified the father’s consent on clinic forms following their separation and became pregnant with a child the father did not want in order to provide a sibling for their child. The ex-partner in that situation is of course now liable for child support and faces a difficult ethical situation in deciding on whether he wants to have a relationship with the new child. We would be pleased to answer any questions you may have about fertility law matters, please visit our website or contact Marc Kemerer from Devry Smith Frank LLP at 416-446-3329 or marc.kemerer@devrylaw.ca. This blog was co-authored by Law Student, Leslie Haddock. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” [1] 2012 BCSC 584. [2] Ibid at paras 75 and 96. [3] 2015 BCCA 2. [4] 2016 BCSC 1621 at paras 97-100. [5] 2019 ONCA 454. [6] 2018 ONSC 4506. [7] 2020 BCCA 328. By Fauzan SiddiquiBlog, Family LawJuly 25, 2023August 24, 2023
My Neighbour’s Old Renovation Has Been Continually Damaging My Property – Can I Still Make a Claim or is it Statute-Barred? Your claim may be “statute-barred” if it falls outside of the limitation periods within your jurisdiction. The Limitations Act, 2002 sets out two main limitation periods for claims commenced in Ontario: (1) a general 2-year limitation period, beginning when the claim was discovered and (2) an ultimate 15-year limitation period, regardless when the claim was discovered. These limitation periods were both considered by Tyszko v St. Catherines (City), a recent decision from the Superior Court of Justice. This case mainly addressed the following question: does a claim for ongoing property damage resulting from work completed nearly twenty years earlier fall outside the ultimate 15-year limitation period? The Facts This decision centered around a motion for summary judgment commenced by the plaintiff, Mr. Tyszko, against the City of St. Catherines for damage resulting from work they completed near the plaintiff’s property. On September 12, 2002, the City installed new storm sewers at the plaintiff’s property. Since then, whenever it rains, water flooded the property instead of draining onto the road. In 2021, the plaintiff sought compensation for repairs made to the property, loss of enjoyment of the property, and his mental distress caused by the claim. In 2015 and 2016, the plaintiff began to notice that rain would come toward his parents’ house instead of onto the street and that cracks were appearing in the basement and around the house. When the plaintiff acquired title to the property in October 2017, he immediately complained to the City about the drainage problem. After getting nowhere with the City, the plaintiff retained a lawyer, who wrote to the City in January, April, and May 2018. In May 2019, the lawyer wrote again, threatening legal action. The City did not respond until the plaintiff’s lawyer followed up in January 2021. An adjuster for the City then investigated the plaintiff’s claim and rejected it on March 12, 2021. The plaintiff finally commenced his statement of claim on July 13, 2021. The City argued that the claim was statute-barred by the ultimate 15-year limitation period or, alternatively, the general 2-year limitation period. The plaintiff disputed these arguments. He held that the 15-year limitation period did not apply as the damage was ongoing; moreover, as he did not know that a legal proceeding was the appropriate remedy until the City denied his claim in March 2021, his claim fell within the general 2-year limitation period. Justice M. Bordin accepted the City’s argument; the claim was barred under both limitation periods. The Ultimate Limitation Period Subsection 15(2) of the Act states that “[n]o proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place.”[1] This 15-year limitation period applies even if the claim remains undiscovered for the entirety of the fifteen years.[2] Under subsection 24(5) of the Act, if an act or omission took place before the Act came into effect on January 1, 2004, and if the claim was not discovered at that time, then the Act applies as if the act or omission had taken place when the Act came into effect.[3] This would apply here: the City’s alleged negligent act occurred in 2002 and was not discovered until well after 2004. As a result, the 15-year limitation period for this act would have expired on January 1, 2019, over two years before the claim was commenced.[4] Do the Exceptions under Subsection 15(6) of the Act Apply? Subsection 15(6) of the Act provides some exceptions to the ultimate limitation period if (a) there is a continuous act or omission, (b) a series of acts or omissions in respect of the same obligation, or (c) an act or omission in respect of a demand obligation. For (a) and (b), the date of the claim is the last time the act or omission occurs.[5] The plaintiff argued that this claim involved a continuous action under subsection 15(6)(a), as the damage worsened every time it rained. Alternatively, the claim was a result of a series of acts or omissions in respect of the same obligation under subsection 15(6)(b), as the City had an ongoing obligation to ensure that water flowed onto the road and not adjoining properties.[6] Justice Bordin rejected both of these arguments. A “continuous cause of action” was defined in Sunset Inns v Sioux Lookout (Municipality) as a cause of action which arises from a repetition of the same acts or omissions which the action sought to address.[7] Justice Bordin found that a failure to rectify an alleged act of negligence is not the same as a series of acts of negligence.[8] The City’s only alleged act of negligence was the work completed in 2002 and a single breach with continuing consequences does not fall under s. 15(6)(a). As discussed in a previous blog, courts have recognized “rolling limitation periods” in the context of breaches of contractual obligations, as discussed in s. 15(6)(b). In these cases, the limitation period resets every time the defendant breaches one of their obligations. However, the plaintiff failed to provide any legal authorities for an obligation owed by the City.[9] Do the Exceptions under Subsection 15(4) of the Act Apply? Subsection 15(4) of the Act states that that ultimate limitation period does not run when (a) the person with the claim is incapable of commencing a proceeding due to their physical, mental, or psychological condition; (b) the person is a minor, or (c) the defendant wilfully conceals the claim or misleads the plaintiff about it.[10] The plaintiff claimed under s. 15(4)(c)(ii) that the City misled him when their insurers failed to contact him. However, Justice Bordin found no evidence that the City instructed the plaintiff to hold off on commencing legal proceedings until they heard from the City’s insurers or the City conducted an investigation.[11] There was nothing preventing the plaintiff from commencing a legal proceeding while waiting to hear from the City before the ultimate limitation period ended. The General Limitation Period Section 4 of the Act states that “a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.”[12] Section 5(1) of the Act describes when a claim is ‘discovered’: 5 (1) A claim is discovered on the earlier of, (a) the day on which the person with the claim first knew, (i) that the injury, loss or damage had occurred, (ii) that the injury, loss or damage was caused by or contributed to by an act or omission, (iii) that the act or omission was that of the person against whom the claim is made, and (iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).[13] A claim is “discovered” and the limitation period is triggered when a plaintiff has sufficient knowledge – that is more than suspicion and less than perfect – that the defendant’s act or omission contributed to or caused their loss.[14] A plaintiff does not need comprehensive knowledge or know the extent of the damages caused by the claim.[15] Here, the plaintiff had enough knowledge of his damages to make the claim by May 2018 and knew that legal proceedings were an appropriate means to seek a remedy by the time of his lawyer’s letter to the City on May 22, 2019.[16] Justice Bordin also rejected the plaintiff’s assertion under s. 5(1)(iv) of the Act that he did not know that a legal proceeding was an appropriate remedy until the City’s rejection of his claim on March 12, 2021. The plaintiff was not required to wait for the City to respond to his demands, there was no alternative means of compensation underway at the time, and the plaintiff could not explain why he waited two years for a response from the City before commencing proceedings.[17] Conclusions This case serves as a warnings to plaintiffs to be aware of any relevant limitation periods when commencing an action. Namely: If the act or omission resulting in your claim occurred more than fifteen years ago, then the claim is statute-barred, regardless of whether the consequences from the Act have continued. The continuing consequences of a single act of negligence is different than continuing acts of negligence, which can constitute an exception to the ultimate 15-year limitation period under s. 15(6)(a) of the Act. Waiting for a response from the defendant without a concrete alternative means of compensation is not sufficient to engage s. 5(1)(a) of the Act and delay your discovery of when a legal proceeding is the appropriate remedy. For more information regarding litigation, please contact Gabriella Schneider or call us at 416-449-1400 for your available options or to book a consultation. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.” This blog was co-authored by law student, Leslie Haddock. [1] SO 2002, c 24, Sched B, s 15(2) [LA]. [2] See York Condominium Corporation No. 382, 2007 ONCA 49 at para 5 and Mega International Commercial Bank (Canada) v Yung, 2018 ONCA 429 at para 69. [3] LA, supra note 1, s 24(5). [4] Tyszko v St. Catherines (City), 2023 ONSC 2892 at para 37 [Tyszko]. [5] LA, supra note 1, s 15(6). [6] Tyszko, supra note 4 at paras 40-42. [7] 2012 ONSC 437 at paras 20-24. [8] Tyszko, supra note 4 at para 44. [9] Ibid at para 42. [10] LA, supra note 1, s 15(4). [11] Tyszko, supra note 4 at para 49. [12] LA, supra note 1, s 4. [13] Ibid, s 5(1). [14] Zeppa v Woodbridge Heating & Air-Conditioning Ltd, 2019 ONCA 47 at para 41. [15] Taylor v David, 2021 ONSC 3264 at paras 16-17. [16] Tyszko, supra note 4 at para 57. [17] Ibid at paras 60-65. By Fauzan SiddiquiBlog, LitigationJuly 17, 2023July 17, 2023