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The Court of Appeal revisits the Enforceability of Termination Provisions

Matthew S. Langer — Thu, 02 Jul 2020 19:14:42 +0000

In Waksdale v Swegon North America, 2020 ONCA 391, the Ontario Court found that if any part of a termination provision violates the Employment Standards Act (ESA) the entire provision will fail and the employee is not limited to the ESA minimums. This is a huge benefit to the employee as termination pay would no longer be limited by the ESA and instead is dictated by the common law.

The facts in Waksdale dealt with an employee who was terminated without cause and the employment contract included a lawful without cause termination provision. What the Ontario Court of Appeal found however, was that the employment contract had an unlawful just cause termination provision. The unlawful just cause termination provision nullified the termination provision so the employee was entitled to the much larger award of common law termination pay.

The reason the Ontario Court of Appeal found the just cause portion of the termination provision to be unlawful was that it breached the ESA. Under the ESA, an employee can be terminated for just cause and owed nothing by the employer if the employee was: “guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.” The threshold for a just cause termination under the common law differs as it is whether the employee was reckless in neglecting their duties and through their own conduct invalidated the employment contract. This distinction is important because even if an employee is terminated for common law just cause, the employee can still be entitled to ESA termination pay. The threshold is very high for an employer to not have to provide the ESA minimums to an employee based on a just cause termination because it is very difficult to prove that an employee was “guilty of wilful misconduct, disobedience or wilful neglect of duty.”

A second important aspect of the Ontario Court of Appeal decision is that the severability clause was not used to effectively remove the unlawful just cause provision and only apply the lawful without cause provision. The Courts reasoning was that a severability clause cannot have any impact on provisions in an employment contract that are unlawful or have been made void by statute. Having concluded that the just cause provision and the termination without cause provision were to be understood together, the severability clause could not apply to sever the offending or unlawful provisions.

This Court of Appeal decision has cast doubt on the enforceability of employment contracts in Ontario and across Canada. If an unlawful just cause provision can no longer be impacted by a severability clause and voids the entire termination provision, many employees could be entitled to the enhanced common law notice upon their termination.

For more information on your legal entitlements if you have been terminated or if you need a termination package reviewed, contact Langer Law at (647) 926-4704.

This blog is for educational and informational purposes only and does not constitute legal advice. Results of cases described on this website may not be typical and are not guaranteed. The accuracy of the blog posts is not guaranteed. Contacting Langer Law or using this website does not create a lawyer-client relationship.

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What is a Separation Agreement?

Matthew S. Langer — Tue, 30 Jun 2020 17:47:42 +0000

A Separation Agreement is a written contract that can be used by separated parties to avoid the court process while still finalizing issues of support, property and parenting. For a Separation Agreement to be enforceable, it must be in writing, signed by the separating parties and witnessed. These are strict requirements that must be properly met or else a Court can invalidate the terms of the Separation Agreement along with the Separation Agreement as a whole.

Ideally, both separated parties will have retained a lawyer and one of the lawyers will draft the Separation Agreement. The importance of each separated party having retained a lawyer is that each party will obtain independent legal advice on the Agreement so each parties interests are protected.

Typical Separation Agreements include clauses that outline the following:

ownership in or division of property;
child support obligations;
spousal support obligations; and
custody and access of the children.

To protect the enforceability of a Separation Agreement, both separated parties must provide full financial disclosure. This is to ensure that income, expenses, assets and debts are out in the open before the separated parties enter into the agreement. Best practices dictate that both separated parties accurately and honestly complete a Financial Statement to provide a list of all income, expenses, assets and debts. A failure to provide full financial disclosure can result in a Court setting aside the Separation Agreement.

For more information on drafting, reviewing or entering into a Separation Agreement, contact Langer Law at (647) 926-4704. With both all-inclusive and unbundled legal services, Langer Law can assist with finding a resolution that makes sense for you.

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What is the Family Responsibility Office (FRO)?

Matthew S. Langer — Tue, 30 Jun 2020 16:41:18 +0000

The Family Responsibility Office, or FRO, enforces support payments based on either a Court-Ordered amount or an amount from a Separation Agreement. FRO is a government agency and as such has many powers granted specifically to ensure that support payments are properly collected.

Section 5 of the Family Responsibility and Support Arrears Enforcement Act gives FRO the authority to “enforce support orders where the support order and the related support deduction order, if any, are filed in the office and to pay the amounts collected to the person to whom they are owed.”

These enforcement powers include the following:

garnishing wages;
garnishing government benefits;
suspending a Driver’s License and Passport;
Issuing a writ for the seizure and sale of the Payor’s owned property;
Reporting the Payor to any professional organizations to which they belong;
Seizing lottery winnings;
Reporting the Payor to the credit bureau; and
imposing jail time.

FRO can only enforce support payments if they are outlined in a Court Order or in an enforceable Separation Agreement. FRO does not make determinations on the amount of support owed. Therefore, the amount of support must already be quantified prior to filing with FRO.

If there is already a written Separation Agreement or other enforceable written Agreement, it must be filed with FRO because FRO cannot automatically enforce it. Only once the Agreement has been properly filed with the Courts and then subsequently sent to FRO, will FRO enforce the support payments.

For more information on enforcing child or spousal support payments, contact Langer Law at (647) 926-4704. With both all-inclusive and unbundled legal services, Langer Law can assist with finding a resolution that makes sense for you.

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Consumer Protection Act: Unfair Practices

Matthew S. Langer — Wed, 13 Nov 2019 01:37:30 +0000

Ontario homeowners have built in protections from the Consumer protection act. One part of the consumer protection act specifically prohibits unfair business practices. The Consumer Protection Act is available online at https://www.ontario.ca/laws/statute/02c30#BK17.

Unfair practices are defined in two different ways under the Act: 1) to make false, misleading or deceptive representations and 2) to make an unconscionable representation.

A business is in breach of the Consumer Protection Act if the business makes false, misleading or deceptive representations. Potential examples of unfair practices included in the Act include:

A representation that the person who is to supply the goods or services has sponsorship, approval, status, affiliation or connection the person does not have.
A representation that a service, part, replacement or repair is needed or advisable, if it is not.
A representation that a specific price advantage exists, if it does not.

A business is in breach of the Consumer Protection Act if the business makes unconscionable representations. Potential examples of unfair practices related to unconscionable representations included in the Act include:

that the price grossly exceeds the price at which similar goods or services are readily available to like consumers.
that the consumer transaction is excessively one-sided in favour of someone other than the consumer.
that the terms of the consumer transaction are so adverse to the consumer as to be inequitable.

The most important feature of the Consumer Protection Act sections relating to unfair practices is that if a Court determines that a HVAC rental company breached these sections, the Court could rescind or cancel the HVAC rental agreement. If an HVAC rental agreement is legally rescinded, the Consumer Protection Act cancels the HVAC rental agreement as if it never existed and further cancels all guarantees given in respect of money payable under the HVAC rental agreement.

As an Ontario homeowner, if you believe that a HVAC rental agreement or the HVAC rental company has breached the Consumer Protection Act, feel free to contact Langer Law at (647) 926-4704 to schedule a free phone consultation.

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What can a Homeowner do before contacting a lawyer?

Matthew S. Langer — Wed, 13 Nov 2019 01:31:57 +0000

With these blog posts on HVAC rental agreements, Langer Law attempts to assist Ontario homeowners with questions and concerns they may have regarding their HVAC rental agreements and their HVAC rental equipment. The intention is for the blog posts to provide information about the HVAC rental agreement that may have been signed without the homeowner fully understanding the consequences.

Before contacting Langer Law, collect and review the following documentation to become aware of how the HVAC rental agreement and HVAC rental equipment is impacting you.

Find the original signed HVAC rental agreement. If you can’t find it, you can ask for a copy from the HVAC rental company.
Review your monthly energy bill to determine which HVAC rental company is billing you monthly, how much you are being billed monthly, and how many pieces of HVAC equipment are currently in the home.
Order a Parcel Register from Service Ontario to determine if the HVAC rental companies placed any liens on your home.

The listed documents above should be available to all Ontario homeowners and provide much needed information regarding the factual scenario faced by the homeowner. A review of these documents could lead to the basis for legal arguments nullifying the HVAC rental agreements.

If you have any questions regarding your HVAC rental agreement or your HVAC rental equipment feel free to contact Langer Law at (647) 926-4704 to schedule a free phone consultation.

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Ontario Small Claims Courts limit increased to $35,000

Matthew S. Langer — Wed, 13 Nov 2019 01:25:08 +0000

Ontario has increased the maximum claim that can be filed in Small Claims Court from $25,000 to $35,000. This change takes effect on January 1, 2020.

On a practical level, employees who initiate a claim for wrongful dismissal or constructive dismissal against their employer can now safely initiate their claim in Small Claims Court for a total of $35,000 plus costs and disbursements. The increase to $35,000 benefits litigants who no longer need to forgo damages over and above $25,000.

Initiating a claim in Superior Court instead of Small Claims Court is more expensive and takes much longer to get to trial. Small Claims Court is a far more efficient avenue for litigation and the quick timelines can in certain circumstances lead to expedited settlement discussions between the parties.

If a claim has already been initiated in Small Claims Court, the claim can be amended to increase the amount of damages from $25,000 to $35,000 beginning on January 1, 2020.

If you have any questions feel free to contact Langer Law at (647) 926-4704 to schedule a free phone consultation.

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What does HVAC stand for?

Matthew S. Langer — Wed, 13 Nov 2019 01:09:05 +0000

HVAC stands for heating, ventilation and air conditioning. The following is a list of possible HVAC equipment that an Ontario homeowner could have signed an HVAC rental agreement for.

Furnaces
Water heaters
Water filtration systems
Water softeners
Water treatment devices
Electronic air cleaners
Air purifiers
Air cleaners
Air Conditioners

Each piece of equipment listed is considered HVAC equipment. If any of the above listed HVAC equipment has been installed in your home by an HVAC rental company it is likely that you have signed an HVAC rental agreement, it is likely that you are paying monthly for a term of 10 years and it is likely that there is a lien on your home.

If you have any questions regarding your HVAC rental agreement or your HVAC rental equipment feel free to contact Langer Law at (647) 926-4704 to schedule a free phone consultation.

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What is a Lien?

Matthew S. Langer — Wed, 13 Nov 2019 00:45:14 +0000

A lien is a legal claim or a right against property that has been properly filed against the property.
Having a lien on property typically prevents a homeowner from selling or refinancing the property
unless the lien holder agrees to discharge or postpone their interest. In the context of HVAC rental
agreements, the technical term for the lien filed on the property is a Notice of Security Interest or NOSI
for short. The distinguishing feature of a NOSI is that it is used to protect an interest in personal
property.

What this means for homeowners who have signed a HVAC rental agreement is that there is likely a lien
or NOSI filed on your property. A homeowner should be aware that if there were multiple HVAC rental
agreements signed, there are likely multiple liens on the property. The lien or NOSI was likely filed either
by the HVAC rental company or a third-party financial institution. A homeowner can check if there is a lien on the property by requesting a Parcel Register from Service Ontario. Go to https://www.onland.ca/ui/ and begin the Parcel Register request by following the directions.

If you have any questions regarding your HVAC rental agreement, your HVAC rental equipment or
requesting a Parcel Register feel free to contact Langer Law at (647) 926-4704 to schedule a free phone
consultation.

This blog is for educational and informational purposes only and does not constitute legal advice. Results
of cases described on this website may not be typical and are not guaranteed. The accuracy of the blog
posts is not guaranteed. Contacting Langer Law or using this website does not create a lawyer-client
relationship.

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Jail Time Imposed on Employer Not Paying Wages

Matthew S. Langer — Fri, 04 Oct 2019 13:59:56 +0000

An Employee is entitled to receive wages for the time that they have worked. Getting paid on a timely basis the proper amount owing is crucial to the employment relationship. There are instances in which the Courts in Ontario have had to enforce fines and in the most serious cases, jail time, when Employers continually refuse to pay their Employers all that is owed.

Section 132 of the Employment Standards Act states that a person who contravenes the Act is guilty of an offence and on conviction is liable

if an individual to a fine of not more than $50,000 or to imprisonment for a term of not more than 12 months or to both.

if the person is a corporation, to a fine of not more than $100,000.

In 2017 the owner of a bankrupt restaurant chain with over 60 employees owed over $600,000 in salary, overtime, vacation pay, termination pay and severance pay. While $457,443 was ordered to be paid to the employees, the full amount was never paid. Ontario Court Justice of the Peace Karen Walker imposed a jail sentence on the owner of 90 days.

Imposing a jail sentence on an Employer who does not pay wages is not common but illustrates the strength of sanctions against an Employer under the Employment Standards Act. If you or someone you know is not receiving their proper wages, they should contact us right away.

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