Posts in category: Law

SEE YOU IN COURT—BUT WHERE?

Even though all civil claims in Ontario go through the same court system, they don’t all go through the same procedure, and the relief you seek will determine what court and procedure you need to follow..

SMALL CLAIMS COURT

If your claim is for payment of money damages or recovery of personal property worth up to $25,000.00, your claim will go to the Small Claims Court.

Small Claims Court procedures tend to be less formal than those in Superior Court because many of the plaintiffs and defendants in court are self-represented. But while it is generally less costly and time-consuming to take a case from filing the claim to trial, the Small Claims Court still applies the same laws and rules of evidence under the Rules of the Small Claims Court. Whether you are representing yourself or have a legal representative, it is imperative to prepare and produce all the witnesses and documents you need to make or defend your case.

SUPERIOR COURT OF JUSTICE—SIMPLIFIED PROCEDURE

If your matter is for money damages, or the recovery of real property or personal property worth over $25,000.00 but less than $100,000.00, it will go through the Simplified Procedure in the Superior Court of Justice.

Simplified Procedure cuts out some of the procedural steps taken in all other Superior Court matters. For example, oral discovery is significantly shorter and parties have the option to hold a summary trial with evidence introduced by affidavits and time-limited examinations. But it also includes mandatory settlement discussions after the parties have exchanged their statements of claim and defence and affidavits of documents to encourage resolving matters.

The cost of matters in simplified procedure tends to be greater than in small claims but less than in other Superior Court matters, and most parties will have lawyers acting for them.

SUPERIOR COURT OF JUSTICE

The Superior Court of Justice can hear any civil claim in Ontario and provide any relief that the court can grant. If your claim for more than $100,000, or if it asks for relief other than damages (such as an order for a specific action, an injunction to stop one, or a declaration of legal rights or title to property), it must go to Superior Court.

The Rules of Civil Procedure govern the conduct of all matters in civil cases from starting a claim through to trial. The Rules are detailed and complex and the Court requires strict compliance. Failing to do so can have serious consequences including legal costs and having your case dismissed.

The lawyers at Alemi Law Group are experienced litigators who can help you assess what damages and other relief you can seek, manage and present your case efficiently and effectively, and advise you on all options for resolving it.

Disclaimer: To the full extent permitted by law, Alemi Law Group does not make any warranties, conditions, representations of any kind as to the accuracy of this publication and other contents on this website. Accessing or using this website does not form a lawyer-client relationship. Individuals and companies do not become clients of Alemi Law Group and/or its lawyers until such time as Alemi Law Group accepts to represent and that it is confirmed in a formal retainer agreement outlining the exact nature of the legal relationship.

POWER OF SALE AND FORECLOSURE

In Ontario, most homeowners will do what they can financially to avoid falling behind on their mortgage payments and risk losing their home, but some unfortunately will not be able to keep up. That’s when two terms start getting used by mortgage lenders—power of sale and foreclosure—and while they may often result in the same end (losing one’s home), they are two very different processes presenting different options and consequences to homeowners dealing with them.

Most mortgage lenders dealing with defaulting homeowners will prefer the power of sale process as it is quicker and less costly. This process begins by sending a Notice of Sale Under Mortgage to the homeowner and anyone else with a legal interest in the property (other mortgage lenders, lien holders, the homeowner’s spouse) no earlier than 15 days after default.

There is then a 35-day period (“redemption period”) during which the mortgage lender cannot take any further steps to sell the property, to give the homeowner time to either bring the mortgage back into good standing or pay off the mortgage completely. If the homeowner cannot do either, the lender will sue for the full amount owing, obtain default judgment from the Court if the homeowners do not defend the Claim, and then obtain a Writ of Possession from the court allowing it to take over the property and sell it.

If there is any money left after the mortgage, other claims on the property and legal fees have been paid, the borrower will receive the rest. If there is nothing, the borrower will have to pay the shortfall.

Foreclosure begins with the same process as a power of sale but the lender must sue the borrower in court for the full amount of the mortgage and a writ of possession. While this process generally takes longer than a power of sale, the borrower gets to take title to the property by court order and can sell the property without having to pay the borrower any profits made from the sale.

If you are a homeowner who has defaulted on your mortgage, Alemi Law Group can advise on options to deal with either process that could allow you to keep your home. It’s the biggest investment most people make—don’t lose it if you can avoid it!

Disclaimer: To the full extent permitted by law, Alemi Law Group does not make any warranties, conditions, representations of any kind as to the accuracy of this publication and other contents on this website. Accessing or using this website does not form a lawyer-client relationship. Individuals and companies do not become clients of Alemi Law Group and/or its lawyers until such time as Alemi Law Group accepts to represent and that it is confirmed in a formal retainer agreement outlining the exact nature of the legal relationship.

LIMITATIONS

If you think you have cause to sue, whether it’s about a broken contract, broken pipe or broken leg, it’s important not to wait too long after something happens, or you find out something has happened, to get legal advice about whether you can or should sue.

The clock could be running on a limitation period—the time period within which you must issue a Statement of Claim or lose your right to sue forever—and it could run out before you know it.

The vast majority of claims in Ontario are governed by Section 5 of the Limitations Act, 2002, which sets the basic time limit of two years for starting a claim in the Ontario Courts based on the principle of discoverability—effectively, the earliest date on which you should have known you had a claim and ought to sue:

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).

For some claims it’s straightforward to determine the date of claim, like the date of a motor vehicle collision.

For other claims, it can be far more complicated, especially when there are several parties who could be liable and different events at different times contributing to the damages.

Getting legal advice on limitation periods is crucial to protecting your right to sue and preserving the evidence to support your case. Your case could also be subject to different limitation periods based on other laws. Alemi Law Group can advise you on the limitation periods that could affect your ability to recover damages.

Disclaimer: To the full extent permitted by law, Alemi Law Group does not make any warranties, conditions, representations of any kind as to the accuracy of this publication and other contents on this website. Accessing or using this website does not form a lawyer-client relationship. Individuals and companies do not become clients of Alemi Law Group and/or its lawyers until such time as Alemi Law Group accepts to represent and that it is confirmed in a formal retainer agreement outlining the exact nature of the legal relationship.

NON-COMPETITION CLAUSE

If you’re planning to start a new job, your employer may ask you to sign an employment contract with a non-competition and/or non-solicitation clause. If you’re leaving your current job, your employer might remind you about such clauses in your contract.

You are interested in continuing to work in your chosen field, applying the skills and cultivating the contacts you’ve made over the years. Your employer is interested in making sure you don’t set up shop against it with everything you’ve come to know and learn there.

Should those clauses hold you back from making your next career move?

In Ontario, non-competition clauses are difficult to enforce, especially as they get longer in time and broader in their restrictions. A clause prohibiting you from working for any employer in your field in the world for five years would likely not be enforceable; one restricting you from starting a similar business for six months within ten kilometres of their offices might be.

Non-solicitation clauses are more likely to be enforceable provided that they are unambiguous and reasonable under the circumstances. Depending on the nature of your job, your responsibilities and the information you would have access to, your employer may have concerns that you could take clients and employees away with you—and employers can go to court for an injunction on short notice to stop it and seek significant damages against you.

The lawyers at Alemi Law Group can advise you of your rights and responsibilities under these clauses. Don’t take the risk on that new job without independent legal advice!

Disclaimer: To the full extent permitted by law, Alemi Law Group does not make any warranties, conditions, representations of any kind as to the accuracy of this publication and other contents on this website. Accessing or using this website does not form a lawyer-client relationship. Individuals and companies do not become clients of Alemi Law Group and/or its lawyers until such time as Alemi Law Group accepts to represent and that it is confirmed in a formal retainer agreement outlining the exact nature of the legal relationship.

SEVERANCE

If your employer is terminating your employment without cause (that is to say, not because of any wrongdoing on your part), you may be given a severance package with a release stating you agree that what you’re getting is what’s required by law, and to get it, you must give up your right to claim any more money.

But what does your employer have to pay you by law? And is that all you’re entitled to?

Before you sign anything, you should keep three things in mind:

1. Most employees and employers in Ontario are governed by the provincial Employment Standards Act, which requires employers to give notice, or pay in lieu, between one and eight weeks, depending on length of service.

2. But courts have recognized the common law notice period which varies based on different factors. Your type of employment, your length of service, your age, the availability of similar employment suitable to your training and experience—all of these factors could entitle you to significantly more than the minimum under the ESA.

3. Your release will likely have a clause stating that you have had the opportunity to seek independent legal advice before signing it. Take advantage of that opportunity—if you sign it without doing so, you may not be able to make a claim against your former employer later.

The lawyers at Alemi Law Group are experienced in employment law matters, can review your severance offer and advise about your rights and possible entitlement to further payment.

Disclaimer: To the full extent permitted by law, Alemi Law Group does not make any warranties, conditions, representations of any kind as to the accuracy of this publication and other contents on this website. Accessing or using this website does not form a lawyer-client relationship. Individuals and companies do not become clients of Alemi Law Group and/or its lawyers until such time as Alemi Law Group accepts to represent and that it is confirmed in a formal retainer agreement outlining the exact nature of the legal relationship.

CONSTRUCTIVE DISMISSAL

A constructive dismissal may occur when an employer makes a significant change to a fundamental term or condition of an employee’s employment without the employee’s actual or implied consent.

For example, an employee may be constructively dismissed if the employer makes changes to the employee’s terms and conditions of employment that result in a significant reduction in salary or a significant negative change in such things as the employee’s work location, hours of work, authority, or position. Constructive dismissal may also include situations where an employer harasses or abuses an employee, or an employer gives an employee an ultimatum to “quit or be fired” and the employee resigns in response.

In Ontario, the employee would have to resign in response to the change within a reasonable period of time in order for the employer’s actions to be considered a termination of employment for purposes of the Employment Standards Act.

Constructive dismissal is a complex and difficult subject. For more information on constructive dismissal please contact the Employment Lawyers at ALG – ALEMI LAW GROUP.

Disclaimer: To the full extent permitted by law, Alemi Law Group does not make any warranties, conditions, representations of any kind as to the accuracy of this publication and other contents on this website. Accessing or using this website does not form a lawyer-client relationship. Individuals and companies do not become clients of Alemi Law Group and/or its lawyers until such time as Alemi Law Group accepts to represent and that it is confirmed in a formal retainer agreement outlining the exact nature of the legal relationship.

COMMERCIAL DISPUTES

What is Commercial Dispute Litigation?

Commercial litigation is an umbrella term that covers a number of distinct business-related issues and disputes. For instance, contract disputes (a form of Commercial dispute) can arise in a number of situations — from a supplier’s failure to deliver goods to your company according to the terms of your agreement to a dispute with a former employee over a non-compete agreement or employment contract.

A breach of contract occurs when a party fails to perform. In a breach of contract action, the main remedies that the non-breaching party may pursue depend largely on the injury suffered. Some remedies include: damages aimed at putting the non-breaching party in the position that it would have been but for the breach, specific performance, cancellation and restitution and quasi-contractual remedies.

Tortious interference or the tort of Intentional Interference with economic relations, another example of commercial dispute, arises when one party intended to harm or injure another party’s economic interest by unlawful or illegal means.

Corporate disputes arises when businesses, including partnerships and corporations, can face a number of legal disputes that fall under the umbrella of commercial litigation. Perhaps a shareholder brings a suit alleging that a company’s officers or directors have breached their fiduciary duties or had a conflict of interest in a transaction that harmed the company. There could be a dispute among the partners or shareholders of a business.

There are many types of commercial litigation. In addition to the types of disputes listed above, franchise dispute, debt collection actions, consumer fraud matters and employment disputes also fall under the heading of commercial litigation. Regardless of the issue you or your company is facing, it is important to have experienced representation from a lawyer who can guide you through the issues and work toward a result that will protect your bottom line. A commercial litigation lawyer at ALG – ALEMI LAW GROUP in Toronto, can evaluate your situation and advise you on how best to proceed. Please call us at 416-447-7033 to book your legal consultation today.

Disclaimer: To the full extent permitted by law, Alemi Law Group does not make any warranties, conditions, representations of any kind as to the accuracy of this publication and other contents on this website. Accessing or using this website does not form a lawyer-client relationship. Individuals and companies do not become clients of Alemi Law Group and/or its lawyers until such time as Alemi Law Group accepts to represent and that it is confirmed in a formal retainer agreement outlining the exact nature of the legal relationship.

MARIJUANA, POT, CANNABIS, MARYJANE

Cannabis, Weed, Pot, Marijuana, Grass, Herb, Bud, Nugs, Skunk, Ganja, MaryJane…call it what you may, Canada will soon become the 2nd nation in the world to legalize recreational marijuana use.

With the legalization of recreational marijuana coming into effect on October 17, 2018, many employers and employees remain unclear about their rights and obligations regarding marijuana in the workplace.

For the most part, nothing will change for employers and employees. Employers will still have the right to set rules restricting or prohibiting recreational marijuana use in the workplace, especially where substance impairment can have severe impacts on workplace health and safety. Generally speaking, the same restrictions that employers apply to alcohol in the workplace will be applicable to recreational marijuana—no smoking during work hours or on the premises, no showing up to work under the influence, no consumption within a set period of time before driving or operating equipment, and so on.

Employers should create and provide their employees with clear and consistent written workplace policies on substance use. Doing so will not only make expectations clear to employees, but they can also provide guidance and protection in case of employee discipline or health and safety violations arising from the use of marijuana.

Employers should also be aware of their duty to accommodate employees who have been prescribed medical marijuana as they would any other employee with a disability, while at the same time ensuring the safety of other employees and the public.

If you are an employee who has been prescribed medical marijuana, you should advise your employer so that they can make appropriate accommodations to allow you to do your job, or modify your duties at work. This does not mean you can smoke or be impaired by marijuana at work, but it does mean your employer has to take it into account in evaluating your job performance and determining what tasks you may or may not be able to perform.

An employer’s right to carry out drug testing and restrictions on that right will not change with the legalization of marijuana. Employees in inherently dangerous workplaces with high safety risks can still be subject to random testing, and testing can still be required if there is reasonable cause to believe an employee is impaired on the job or has been involved in a workplace accident. Employers should also be cautious not to assume that employees who test positive for marijuana are in fact impaired, but they should be prepared to concerns with employees about substance abuse and offer support and assistance to employees who may be struggling with it.

The lawyers at Alemi Law Group can help employees and employers understand their rights and responsibilities regarding substance use in the workplace to help strike the balance between them.

Disclaimer: To the full extent permitted by law, Alemi Law Group does not make any warranties, conditions, representations of any kind as to the accuracy of this publication and other contents on this website. Accessing or using this website does not form a lawyer-client relationship. Individuals and companies do not become clients of Alemi Law Group and/or its lawyers until such time as Alemi Law Group accepts to represent and that it is confirmed in a formal retainer agreement outlining the exact nature of the legal relationship.

Most legal disputes never result in a claim being filed in court. Of those disputes that do go to court, very few of them—perhaps about 5%–actually go all the way to trial. Even fewer people are satisfied with the time and costs, sometimes over many years and thousands and thousands of dollars, to get a result that doesn’t always make the winner happy.

Alternative dispute resolution offers people ways to reach a resolution to even the most complex legal disputes while saving time, money, and stress. It also puts the parties in control of the process to set their own rules and schedules for resolving disputes, instead of being controlled by the formalities of court procedures and long waiting lists for court dates.

There are three basic forms of alternative dispute resolution: mediation, arbitration, and mediation-arbitration. Each have their own benefits depending on the type of dispute and what parties want out of the process.

MEDIATION

In mediation, parties will choose an impartial person to help them reach a mutually satisfactory resolution to their dispute. This person does not have to have legal or dispute resolution training, although such training and experience may be helpful.

A mediator cannot impose a resolution but can offer recommendations and guidance to the parties to help them settle matters, and act as a go-between where communication between the parties has become strained or broken down.

The mediation process is usually relatively informal and allows parties a better chance to walk away with an agreement and even a repaired relationship. It is also private and confidential and should it fail, generally what was discussed at mediation cannot be revealed in court.

If the parties have already brought a claim in Superior Court in Toronto, Ottawa or Essex County, the court will require them to attend mandatory mediation within 180 days after the defence has been filed. The process is more formal—the parties must choose a mediator, file statements of issues setting out their positions on the case, and attend with their lawyers (if represented) with full authority to settle the case at the mediation. The court can throw out a case and/or order costs if a party does not attend or is not prepared for the mediation, which forces them to take the mediation seriously and encourages settlement.

ARBITRATION

Arbitration offers the finality of an impartial decision with less of the time, cost and formality involved in litigation.

The parties may select a single arbitrator or have a panel of arbitrators hear and decide their dispute. The parties also have more control of the process as they can set the schedule, determine what information and evidence needs to be exchanged and submitted, and how evidence will be received. Effectively, the parties make their own court.

Arbitrators often have legal and/or dispute resolution training, and many have professional certification as arbitrators or practice professionally solely in arbitration and/or mediation.

Arbitration decisions are final and binding on the parties and can be enforced under the Arbitrations Act as court orders.

MEDIATION-ARBITRATION

If parties want to try to reach a settlement but have someone make a final decision if they can’t, mediation-arbitration offers an effective way to do so. The same person will initially act as a mediator but if the parties cannot reach an agreement within a certain time frame or on certain issues, the mediator will then act as an arbitrator under the same procedures as a regular arbitration.

While going straight from mediation to arbitration saves time and money, parties may lose the confidentiality of their mediation discussions.

The lawyers at Alemi Law Group are experienced in alternative dispute resolution and can advise you on ways to resolve your dispute without going to court.

Disclaimer: To the full extent permitted by law, Alemi Law Group does not make any warranties, conditions, representations of any kind as to the accuracy of this publication and other contents on this website. Accessing or using this website does not form a lawyer-client relationship. Individuals and companies do not become clients of Alemi Law Group and/or its lawyers until such time as Alemi Law Group accepts to represent and that it is confirmed in a formal retainer agreement outlining the exact nature of the legal relationship.

ENFORCEMENT OF A JUDGMENT IN SMALL CLAIMS COURT

A judgment in Small Claims Court is just a piece of paper until you take steps to enforce it. Collecting the money you are owed by court order can be sometimes be as daunting as the process of getting the order, but you have the choice of several ways to collect a judgment depending on what you think is most likely to get you paid in full as soon as possible.

In many cases, you will not need to go back to court, as judgment debtors often settle upon receiving the order and a demand letter for payment. But if you need to go back to court, there are three options available:

1. Examination Hearing

You may not know what assets or income a judgment debtor has to pay a judgment from. An examination hearing before a judge of the Small Claims Court can get you that information.

You will need to serve the debtor with a Notice of Examination at least 30 days before the hearing, along with an Affidavit for Enforcement Request setting out the amount owed in the judgment, the amount already paid to you (if any), and the amount still owing.

You will also serve the debtor with a Financial Information Form in which they must set out their income and assets. The debtor must attend the hearing and answer your questions about their income, debts, and assets, and providing supporting documents. If they do not, they can be held in contempt of court, and be fined or even jailed until they comply.

The judge will make orders about payment, and can set a schedule for payment with consequences foe default.

2. Notice of Garnishment

This method is most useful if you know where the debtor works or banks.

To start the process, you need to complete, serve, and file an Affidavit for Enforcement Request setting out the amount owed in the judgment, how much is owed, that the garnishee (employer or bank) will owe the debtor money, and the garnishee’s address. You will need the exact legal name of the employer, or the name and address of the bank branch the debtor banks at.

You should then serve a Notice of Garnishment on the garnishee and then serve the debtor to avoid efforts to thwart payment. The garnishee will then pay the money collected to court.

Some funds cannot be garnished, such as ODSP, Canada Pension Plan, or Ontario Works.

3. Writ of Seizure and Sale

This method can be effective if the debtor owns land or personal property, such as motor vehicles or tools and equipment (subject to exemptions) that could get a good price at public auction.

However, the seizure and sale process can be time-consuming and expensive and especially risky if the debtor has few assets.

You will complete, serve and file an Affidavit for Enforcement Request, at which time the court will issue a Direction to Enforce Writ of Seizure and Sale. You can submit a Writ of Seizure and Sale with the Direction to Enforce to the enforcement (sheriff) office in your municipality, together with an enforcement fee and deposit for enforcement expenses.

The Enforcement Office can seize, store and sell personal property at public auction immediately upon receiving a Direction; you must wait four months to enforce the sale of land.

Despite the time and cost involved in selling land, registering a Writ on title to a debtor’s real estate can be effective in getting full payment over time, as they will likely not be able to get a mortgage or close the sale of the property with paying off the writ.

The lawyers at Alemi Law Group can help you through the small claims court process from filing a claim to collecting a judgment and getting more than a victory on paper.

Disclaimer: To the full extent permitted by law, Alemi Law Group does not make any warranties, conditions, representations of any kind as to the accuracy of this publication and other contents on this website. Accessing or using this website does not form a lawyer-client relationship. Individuals and companies do not become clients of Alemi Law Group and/or its lawyers until such time as Alemi Law Group accepts to represent and that it is confirmed in a formal retainer agreement outlining the exact nature of the legal relationship.

SUING A CORPORATION

Customers disappointed with goods, clients unsatisfied with services, visitors injured in buildings—all of them may be unhappy with the people they were dealing with, but ultimately their claim may be with the corporation behind them.

Suing a corporation may often be the better legal and strategic route to resolving your claims when all else has failed, but it’s not always as simple as going after the name on the door.

First, you need to be sure that the business you are dealing with is incorporated. A business name search online through the NUANS system will search the Ontario Ministry of Government Services records to see if the business name is registered and who registered it, whether it was one person as a sole proprietorship, several people as a partnership, or a corporation.

This search is crucial in determining who to sue and who can be found liable. Generally speaking, corporations are considered liable for the actions and omissions of their owners, managers and employees (vicarious liability) and not those people themselves. Sole proprietors and partners are generally personally liable.

If you are suing a corporation, you need to make sure that it still exists. You cannot sue or obtain judgment against a corporation that has been dissolved. A Corporation Profile Report will confirm if it is still legally active (which is much different from carrying on business), its registered head office address (which could be different from its business address) and contain the names and addresses of its officers and directors. This information will help you in serving a claim on the corporation.

Although most corporations in Ontario are incorporated under the Ontario Business Corporations Act, some are federally incorporated under the Canada Business Corporations Act, particularly if they do business in other provinces or countries, or in federally regulated industries. You can do the same searches online as for Ontario corporations.

PIERCING THE CORPORATE VEIL

While corporations are created to insulate their shareholders, directors and officers from personal liability, that protection is not absolute. If those in control of a corporation deliberately direct something wrong to be done, or have set up the corporation for illegal, fraudulent or other improper purposes, they can be sued and held personally liable for such actions carried out while acting for the corporation.

The legal test to pierce the corporate veil is strict and vicarious liability generally covers almost all claims. A claim for breach of contract for unpaid bills will not likely permit you to pierce the corporate veil, but a fraud committed with no intention of ever paying those bills might.

OPPRESSION REMEDY

Sometimes it may be impractical or impossible to recover from the corporation because it is insolvent, ceased doing business, or holds few or no assets. The oppression remedy found in both the Ontario and Canada Business Corporation Acts allows you to hold the corporation liable for any acts or omissions that “are oppressive or unfairly prejudicial or that unfairly disregards the interests of any…creditor” and pursue a wide range of remedies, including holding the shareholders as well as the officers and directors personally liable. This can be useful especially in dealing with small, closely-held corporations with few shareholders.

However, this remedy only applies if your claim is as a creditor of the corporation. Personal injury or wrongful dismissal claims would not apply, and courts do not often grant this remedy if others are available.

The lawyers at Alemi Law Group can assist you with claims against corporations and help you through the complexities of corporate law to reach a fair and just resolution of your claims.

Disclaimer: To the full extent permitted by law, Alemi Law Group does not make any warranties, conditions, representations of any kind as to the accuracy of this publication and other contents on this website. Accessing or using this website does not form a lawyer-client relationship. Individuals and companies do not become clients of Alemi Law Group and/or its lawyers until such time as Alemi Law Group accepts to represent and that it is confirmed in a formal retainer agreement outlining the exact nature of the legal relationship.

TORT v. SABS

If you have been injured in a motor vehicle accident in Ontario, there are two kinds of claims you can make to compensate for your losses: accident benefits and tort. Although you are legally entitled to bring both claims, there are significant differences between them from what losses they cover to who provides them and how to obtain them and understanding the difference can not only help you maximize your financial recovery but more importantly, can also help you with your injury recovery.

ACCIDENT BENEFITS

Accident benefits are intended to compensate for expenses related to treatment of injuries and provide income replacement during your recovery. You can claim from your auto insurer; if you do not have auto insurance, you can obtain these benefits through the insurance of the other person involved in the accident.

All standard auto insurance policies in Ontario provide accident benefits under the Statutory Accident Benefits Scheme (SABS). You are entitled to claim them regardless of who is at fault for the accident. All policies provide the same basic benefits:

• $3,500.00 medical and rehabilitation expenses for minor injuries (such as cuts and bruises)
• $65,000.00 combined medical and rehabilitation expenses for more serious, non-catastrophic injuries (such as a broken limb)
• $1,000,000.00 combined medical and rehabilitation expenses for major, catastrophic injuries (such as paraplegia or blindness in both eyes)
• Income replacement of 70% of gross income per week up to $400.00
• Non-earner benefits of $185.00 per week for up to 104 weeks
• Medical examination costs up to $2,000.00 per exam

You can purchase increased benefits to cover increased medical and rehabilitation expenses, income replacement, caregiver and home attendant benefits, death and funeral benefits. Your insurance broker can best advise you on what additional accident benefits you may need to fit your situation.

You will need to apply with thirty (30) days of the accident for SABS and your qualification for benefits, and the treatments and expenses that will be approved under your benefits may vary.

TORT

Tort claims are intended not only to compensate for many of the same expenses as accident benefits do, but also to compensate for other losses that SABS does not. These are the claims brought against the driver and other persons at fault for your accident by a Statement of Claim in the Superior Court of Justice.

Tort claims are generally broken into two categories: special damages and general damages. Special damages include losses that have been incurred before trial and can be readily calculated in dollar figures. The most common claims for special damages because of injuries sustained in a motor vehicle accident can include:

• Medical expenses incurred because of injuries sustained in the accident;
• Housekeeping and caregiver expenses incurred because of injuries sustained in the accident;
• Loss of income
• Property damage

Special damages are those may continue to be incurred after trial and require more detailed and even expert evidence to be calculated as a dollar amount.

The most common claims for special damages in motor vehicle accident claims can include:

• Pain and suffering
• Future medical and treatment expenses
• Future loss of income and loss of earning capacity

Your immediate family members can also make claims under the Family Law Act for their financial losses related to care, guidance and companionship as a result of your injuries.

Tort claims are subject to a two-year limitation period to issue a Statement of Claim from the date of the motor vehicle accident. It is therefore crucial to contact one of our experienced lawyers at Alemi Law Group as soon as possible after an accident to obtain advice about your legal rights and what steps you may need to take to protect them.

Disclaimer: To the full extent permitted by law, Alemi Law Group does not make any warranties, conditions, representations of any kind as to the accuracy of this publication and other contents on this website. Accessing or using this website does not form a lawyer-client relationship. Individuals and companies do not become clients of Alemi Law Group and/or its lawyers until such time as Alemi Law Group accepts to represent and that it is confirmed in a formal retainer agreement outlining the exact nature of the legal relationship.

AFFIDAVIT OF DOCUMENTS

Preparing for trial begins as soon as your statement of claim has been filed in Court, if not earlier, and key to victory at trial—or a favourable settlement—is knowing what and where all of your evidence is and how it fits into proving your case. Just as importantly, you need to know the opposing party’s evidence and how it not only fits into their case but also affects yours.

In civil proceedings in Ontario, parties must swear under oath and exchange a document known as an Affidavit of Documents after the close of pleadings, or the point when the parties have filed all of their claims and defences. This document essentially discloses all of the documents that are relevant to any matter in issue in an action, or has been in the possession, control or power of a party to the action, and must include them unless privilege is claimed over them. This document will not be filed in court, but the documents and information therein will form the basis of evidence to be submitted at trial.

The Affidavit of Documents contains three schedules:

SCHEDULE A:

This schedule contains a list of documents that are in the possession of the person who has sworn the Affidavit, and to which they do not object to producing to the opposing party, their lawyers, and the Court, even if they are not ultimately submitted in Court as evidence.

It is crucial not to withhold any documents that are relevant to any matter in your case, because if you fail to produce them in your affidavit of documents, you may not be permitted to submit them as evidence in court if they are helpful to your case.

The documents may also be produced in electronic format where necessary to preserve the evidence, or where the amount of documents being produced would be too voluminous to print.

SCHEDULE B:

This schedule contains a list of documents that are in the possession of the person who has sworn the Affidavit that they object to producing as privileged documents. The most common form of privilege is “solicitor-client privilege,” which protects the confidential communications between a client and their lawyer, but other grounds for privilege can also apply.

SCHEDULE C:

This schedule contains a list of documents that are relevant to matters in the case, but that are no longer in the possession of the person who has sworn the Affidavit, whether they have been lost, destroyed or now in the possession of other persons.

Cases in Simplified Procedure in Ontario for claims of $100,000.00 or less (but not Small Claims Court matters) will require a Schedule D. This schedule contains a list of the names and address of people who have personal knowledge about the matters in the case.

Finally, the lawyer for the person swearing the Affidavit will sign a Lawyer’s Certificate stating that they have advised them of their responsibility to disclose all relevant documents, what documents are likely to be relevant, and if proceeding under Simplified Procedure, the responsibility to disclose the names and addresses of witnesses.

Full and timely disclosure is critical to advancing your case, protecting your credibility and potentially resolving matters without going to trial. The lawyers at Alemi Law Group are experienced with all elements of the litigation process and can advise you on how to best present your case in court.

Disclaimer: To the full extent permitted by law, Alemi Law Group does not make any warranties, conditions, representations of any kind as to the accuracy of this publication and other contents on this website. Accessing or using this website does not form a lawyer-client relationship. Individuals and companies do not become clients of Alemi Law Group and/or its lawyers until such time as Alemi Law Group accepts to represent and that it is confirmed in a formal retainer agreement outlining the exact nature of the legal relationship.

SETTLEMENT

More than nine out of every ten cases filed in the Ontario Superior Court of Justice are settled before going to trial. In these cases, the parties have decided that the risks and costs of a trial outweigh those of paying more or taking less than they want to put matters behind them.

Two questions about settlement will come to mind during litigation: “Should I make an offer to settle?” and “Should I accept an offer to settle?” There are no easy answers to these questions, but keep two points in mind.

First, neither you nor the other party are under any obligation to settle. The court cannot order you to settle. You are entitled to your day in court, but you will likely not recover all of your costs if successful at trial, and you may be paying a good part of the other party’s costs as well as your own if you are not.

Second, a settlement is intended to resolve all claims in dispute and bind the parties forever. A settlement may be turned into a court order and enforced if its terms are not fulfilled, and you can be held to what turns out to be a bad deal.

Offers to settle in actions before the Superior Court are governed by Rule 49 of the Rules of Civil Procedure. A party can serve an offer to settle on any other party at any time up until the court gives its decision at trial. While binding offers can be communicated in writing as informally as a short text message, most will be written in a court form to ensure that the terms of settlement are clear. They will also generally be made on a “without prejudice” basis, in which the party making it is not admitting any liability or withdrawing any claims or defences by making the offer. Offers to settle are confidential and cannot be referred to in any pleadings or in court until after judgment is given at trial.

An offer to settle can be open for acceptance for any time limit and can be revoked even before that time limit expires. If you reject an offer that remains open after you reject it, you can make a counteroffer or even accept the original offer later, provided it has not already been revoked.

IF AN OFFER IS ACCEPTED

Once a party accepts an offer to settle, the lawyers will often draft two documents: a Minutes of Settlement and Full and Final Mutual Release.

The Minutes of Settlement will generally be written in a format similar to a court order, making provisions for payment, transfer of property, any other obligations, and legal costs. Most parties will agree to cover their own legal costs, but one party may agree to contribute to the other’s costs.

The Full and Final Mutual Release will release both parties from all past, present and future claims arising out of the litigation, whether or not they have arisen or are known to exist at the time. This is especially important in personal injury or property damage In which it may not be known for a long time, if ever, if damages will arise because of unknown complications from injuries or defects in property. The release will also not acknowledge liability and will be a complete defence in court against any future claims arising from the same issues in the litigation.

Once all parties have signed both the Minutes and Release, the action may be dismissed on consent. If there is a confidentiality agreement in the Minutes and/or Release, the terms of the settlement will be kept confidential and not appear in the final order dismissing the action. If there is not, the terms of

settlement may be turned into an order on consent which appears in the public court record. Many settlements in cases involving sensitive financial, business or personal information will often contain a confidentiality clause.

IF AN OFFER IS REJECTED

Rejecting an offer may spur a round of offers and counteroffers leading to settlement especially as a case gets closer to trial and the parties have a good sense of the evidence, the strength and weaknesses exposed, and the legal costs and risks involved in going to trial.

If the case goes to trial, however, offers to settle will affect how the court awards costs.

A plaintiff who has made an offer to settle that has not been revoked or expired who makes an offer ($300,000, for example) equal to or better than the judgment at trial ($400,000) is entitled to partial indemnity costs (usually about 60-65%) up to the date of the offer to settle and substantiai indemnity (usually 80-85%) after that date. An offer to settle for

A defendant who has made an offer to settle that has not been revoked or expired ($300,000) and which is equal to or worse than the judgment at trial ($200,000) would be entitled to partial indemnity costs after the date of the offer.

TO SETTLE OR NOT TO SETTLE

The key to a good settlement is to leave both sides satisfied that they have gotten as much as they could get and given up as much as they could give. Many financial and personal variables go into making, accepting or rejecting an offer to settle and while previous cases can give a guideline to what a court may award at trial, no two cases are exactly alike. The lawyers at Alemi Law Group can advise you on your options and expectations for settlement or trial of your case.

Disclaimer: To the full extent permitted by law, Alemi Law Group does not make any warranties, conditions, representations of any kind as to the accuracy of this publication and other contents on this website. Accessing or using this website does not form a lawyer-client relationship. Individuals and companies do not become clients of Alemi Law Group and/or its lawyers until such time as Alemi Law Group accepts to represent and that it is confirmed in a formal retainer agreement outlining the exact nature of the legal relationship.

MOTIONS IN THE SUPERIOR COURT OF JUSTICE

During the course of a civil lawsuit parties may have disputes over procedural or legal issues that they cannot resolve between themselves or need to take procedural steps requiring permission of the court. To do so, a request for a formal order of the Court, or motion, needs to be brought.

Some motions are made on consent of the parties and can often be dealt with in writing without a need to appear in person in court. In others, the opposing party will take no position and leave it to the court to decide based on the moving party’s submissions. However, most motions are opposed, and in all cases, motions are governed by the procedures set out in Rule 37 of the Rules of Civil Procedure.

The party bringing the motion (moving party) must serve a Notice of Motion on the opposing party, setting out the relief requested from the court and a summary of the evidence, legislation and rules of civil procedure forming the basis of the request, including the date on which the motion is to be heard in court. Most courts only hear motion on one or two days of the week and as a courtesy, moving parties should canvass dates before unilaterally choosing one.

The moving party will need to swear or affirm an affidavit stating the evidence from their personal knowledge, or to the best of their information and belief. Affidavits from more than one person may be included if required. The court will not hear oral evidence from any of the parties on a motion unless other rules of civil procedure permit it (on a summary judgment motion, for example) or in exceptional circumstances.

These documents, together with any relevant transcripts from examinations, and any other material necessary for the motion, must be bound in a motion record for ease of reference.

Longer or more complex motions will require a factum, which is a written argument of the facts and law relied upon by the party. For most other motions, unless the motion is strictly procedural or on consent, it is still helpful to prepare a short factum. The case law and legislation relied upon will be set out in a Book of Authorities referred to in the factum, with the relevant paragraphs and sections highlighted for ease of reference.

Once the Motion Record, Factum and Book of Authorities have been completed, they must be served on any party affected by the order sought, even if they are not a party to the action, and then filed in court with an Affidavit of Service, together with the filing fee.

Motions must be confirmed in writing with the court by 2:00 p.m. three days before the date of the motion (excluding weekends and holidays). The confirmation will set out that the moving party has confirmed or attempt to confirm with the other party they agree to proceeding with the motion on that date, how much time for oral argument they will need, and what evidence will be referred to. If this confirmation is not filed with the court, the court will not hear the motion and the moving party may be put to the expense of re-serving and re-filing the motion.

The moving party will speak first before the judge, provide a brief summary of the case, the relief being sought in the motion, and whether the motion is on consent, unopposed, or opposed. The moving party will then make oral arguments, based on the affidavits, factum and book of authorities, and will often be asked questions by the judge. The responding party will then make their oral arguments, and if they have raised new issues in those arguments, the judge may ask for submissions from the moving party.

The judge may issue an oral ruling from the bench at the end of submissions, with or without written reasons to follow, or may reserve his/her decision and issue a written decision later.

The successful party is generally entitled to its costs and both parties should prepare in advance a schedule of the legal fees and disbursements incurred for the motion in case the judge decides to receive submissions on costs in court at the motion itself.

The moving party should also have a draft order prepared setting out the relief requested, as they will be responsible for drafting the order to reflect the judge’s decision and filing it with the court.

These are only the basics of a contested motion in the Superior Court and whether and when to bring a motion, and for what, can change quickly in your case. The lawyers at Alemi Law Group are experienced with motions and managing the process to help obtain a fair and just result and strengthen your case for settlement or trial.

Disclaimer: To the full extent permitted by law, Alemi Law Group does not make any warranties, conditions, representations of any kind as to the accuracy of this publication and other contents on this website. Accessing or using this website does not form a lawyer-client relationship. Individuals and companies do not become clients of Alemi Law Group and/or its lawyers until such time as Alemi Law Group accepts to represent and that it is confirmed in a formal retainer agreement outlining the exact nature of the legal relationship.

NET FAMILY PROPERTY

When couples are getting married or are separating, one question almost always comes up: what rights do we have in each other’s property?

The common belief is that legally married couples own half of each other’s property. In Ontario, this isn’t strictly speaking the case. Under the Family Law Act, the legislation that governs marital property rights in Ontario, those rights are governed under the concepts of net family property and equalization.

In its simplest form, net family property is calculated by taking each spouse’s assets on the date of marriage and subtracting their liabilities as of that date. Then each spouse’s assets minus liabilities must be calculated as of the valuation date. This is usually the date on which the spouses have separated—that is, started living separate and apart from each other with no reasonable prospect of reconciliation.

Equalization is calculated by subtracting the lower amount from the higher amount and dividing the remainder by two. This figure results in the equalization of net family property payable by one spouse to the other. This amount can be paid in cash, transfer of property, or a combination of both.

However, not all property spouses own is treated the same way, nor does it all have to be included in net family property.

Some property is excluded from calculation of net family property and the value thereof not required to be divided on separation. Examples of excluded property include gift or inheritances received during the marriage (but not before), damages or settlements for personal injury, and life insurance proceeds.

The matrimonial home is also treated uniquely, regardless of whether title to the home is the name of one or both spouses. Its value is never deducted or excluded from the calculation of net family property, even if one of the spouses owned it at the date of marriage, or it was inherited during the marriage.

Equalization of net family property also isn’t affected by wrongdoing in the marriage unrelated to family property. Adultery or abuse are not grounds to increase or reduce an equalization payment. But a court can order unequal division if one spouse failed to disclose debts existing at the time of the marriage or ran up debts during the marriage recklessly or in bad faith, particularly to avoid an equalization payment.

Finally, couples can agree through a domestic contract to divide their assets and liabilities unequally, set aside certain property for one spouse, or otherwise settle their property as they see fit.

These are only the basics of net family property and every couple’s financial situation and property holdings are unique. The lawyers at Alemi Law Group are experienced in handling matters related to matrimonial property to help couples reach fair and satisfactory arrangements.

Disclaimer: To the full extent permitted by law, Alemi Law Group does not make any warranties, conditions, representations of any kind as to the accuracy of this publication and other contents on this website. Accessing or using this website does not form a lawyer-client relationship. Individuals and companies do not become clients of Alemi Law Group and/or its lawyers until such time as Alemi Law Group accepts to represent and that it is confirmed in a formal retainer agreement outlining the exact nature of the legal relationship.

DOMESTIC CONTRACTS

Couples bringing their lives together or taking them apart will find themselves dealing with many financial issues and potentially those regarding children. While the courts and legislation can provide certainty they may not be able to provide solutions that best meet couple’s particular needs, and an agreement couples can reach between themselves beforehand will usually be more satisfactory than an order imposed by a court afterwards.

There are three forms of domestic contract recognized under the Family Law Act in Ontario that, while they differ in who and what they apply to, are flexible enough to cover any couple’s situation.

Marriage contract, commonly known as pre-nuptial agreements,  allow couples who are married or who plan to marry to deal with matters regarding property, support obligations, raising children and any other matters they see fit. Couples can agree to divide their property unequally, determine ownership of property, set or contract out of spousal support, and make arrangements for their children’s education and upbringing.

However, spouses cannot contract out of their rights in the matrimonial home—a spouse cannot contract out of their right to possession of the home or agree to have it sold or mortgaged without their consent. They also cannot make contracts about the rights to custody or access to their children.

Cohabitation agreements allow couples who are living together or plan to live together to deal with the same matters as a marriage agreement. These agreements are especially important for common-law couples to consider because there is no automatic legal entitlement to division of property upon separation, or for sharing of assets and liabilities. Nor does one arise however long a couple has been living together.

Another advantage of cohabitation agreements is that if a couple marries, the agreement automatically becomes a marriage agreement and continues to be valid.

Separation agreement allow for married or cohabiting couples who have separated to settle all of the same matters that can be settled in a marriage or cohabitation agreement, and also make child custody and access arrangements.

If you are considering entering into a domestic contract, it is important to make full financial disclosure of all assets and liabilities as failure to do so can result in the agreement being overturned by a court. If necessary, a domestic agreement can be filed with the Superior Court of Justice in Ontario and it can be enforced as if it had been made a court order.

Every couple’s situation is different and domestic contracts can be drafted to address practically any issue involving the couple. The lawyers at Alemi Law Group are experienced in the negotiation of domestic contracts and can advise you on reaching an agreement that can contribute to a couple’s harmony and security.

Disclaimer: To the full extent permitted by law, Alemi Law Group does not make any warranties, conditions, representations of any kind as to the accuracy of this publication and other contents on this website. Accessing or using this website does not form a lawyer-client relationship. Individuals and companies do not become clients of Alemi Law Group and/or its lawyers until such time as Alemi Law Group accepts to represent and that it is confirmed in a formal retainer agreement outlining the exact nature of the legal relationship.

WHEN THE COLLECTION CALLS COME

Demand letters and phone calls from collection agencies can add stress and anxiety on top of an already difficult situation. The simplest solution—paying the debt claimed in full immediately—might not be financially available to you. Ignoring the collectors will not make the debt go away and will only to lead to more aggressive action that could lead to court orders and legal costs against you, causing serious damage to your credit rating.

Fortunately, there are ways to stop or limit the collection calls and get back some peace of mind. Understanding the legal process collection agencies must follow to collect on a debt will allow you to stop harassing calls to you or others and begin a fair and reasonable resolution process.

How Can Collection Agencies Contact You?

In Ontario, a collection agency must first send you a written notice by regular mail (not e-mail) setting out the name of the creditor (business or person that claims you owe them money), the amount of money claimed, and the name of the collection agency and a statement that the creditor has asked it to collect the debt. Without that notice, which must include a mandatory disclosure form setting out your rights under the Collection and Debt Settlement Services Act.

The agency must then wait six (6) days to contact you (actually speak with you, not just leave a message or an e-mail) and after that first contact, cannot contact you more than three times in seven days without your consent. The agency also can’t contact you outside certain periods: before 7:00 a.m. or after 9:00 p.m. from Monday to Saturday, Sunday before 1:00 p.m. or after 5:00 p.m., or on holidays.

At no time can they use threatening, coercive, profane or intimidating language, or put undue, excessive or unreasonable pressure on you to pay.

Who Can’t They Contact?

Collection agencies can only contact your employer to get your employment information. They cannot contact your employer unless you give them written permission, the employer has guaranteed your debt, or the contact is about a court order or garnishment of your pay.

Collection agencies cannot contact your spouse, family members, relatives, neighbours or friends except to get your address and telephone number, unless they have guaranteed your debt or you have given the agencies written permission to contact them on your behalf. They also cannot contact you if you don’t owe the debt and are not the person they are looking for.

Agencies also must stop contacting you if you send a registered letter stating that you dispute the debt and intend to resolve the matter in court. They also cannot contact you if your lawyer or paralegal sends a letter informing them that they must contact them about their claim against you.

What If They Make Unauthorized Contact?

It’s a good idea to keep a record of all contacts from a collection agency, including dares and times of calls, letters, e-mails, or faxes. If any of their contacts were not legally authorized or were threatening, profane or harassing, a letter to the agency with supporting documentation may be enough to stop such contact.

If not, a complaint to the Ministry of Govenrment and Consumer Services, with supporting documentation, may trigger an investigation. Collection agencies can face significant fines or the revocation of their registration if they fail to comply.

The lawyers at Alemi Law Group can assist you with negotiating a resolution to your debts to avoid or limit financial damage and credit rating.

Disclaimer: To the full extent permitted by law, Alemi Law Group does not make any warranties, conditions, representations of any kind as to the accuracy of this publication and other contents on this website. Accessing or using this website does not form a lawyer-client relationship. Individuals and companies do not become clients of Alemi Law Group and/or its lawyers until such time as Alemi Law Group accepts to represent and that it is confirmed in a formal retainer agreement outlining the exact nature of the legal relationship.