Legal Tips - (705) 268-6492
Here are some generally helpful law related tips that anyone can use. Remember that this is not legal advice as every situation is different; therefore we strongly encourage you to contact our firm for information on all your legal questions.
1. FOR PROVINCIALLY GOVERNED EMPLOYERS:
Did you know that under the ESA 2000 if you choose to terminate an Employee and you are unable to PROVE Just Cause that you will be obliged to provide that employee either termination notice or pay in lieu of Notice which would vary between 1 week to 8 weeks depending on the length of service together with benefits during the relevant period. If the Employee has worked for more than 5 years and the Employer’s payroll is more than 2.5 million the Employer be responsible to pay Severance pay depending on the specific facts of your case. There are also the common law remedies that are available to the Employee which will depend on the existence of an Employment Contract and its validity. If the Employment contract is non-existent or is null and void, the Common Law remedies are available and are often much more generous. At Common Law we consider the age of the Employee at the time of the termination, the position held as well as the years of service. The older the employee, the higher the position and the longer the service makes the severance package much more generous.
2. CANADA LABOUR CODE GOVERNED EMPLOYERS
Did you know that if you terminate a permanent Employee WHO IS GOVERNED BY THE CANADA LABOUR CODE without being able to PROVE just cause, the adjudicator can order you to rehire the terminated employee and return the employee to his or her former position. The adjudicator can also order that you compensate the Employee for all damages so as to return the employee to the position he or she would have been in if the termination had not occurred. This can be extremely costly in some circumstances. With the recent decision of Wilson vs. Atomic Energy which is a decision of the Supreme Court of Canada, they have not made it clear that CLC employers can only terminate an employee after 12 consecutive months of employment if the Employer has just cause for the termination which is very difficult to prove in Law. One needs to apply progressive discipline to be able to warrant a Just Cause dismissal in most cases.
3. FIRST NATIONS ORGANIZATION – AND EMPLOYMENT LAW:
Did you know that it is very important for all Federally governed Employers, PARTICULARLY First Nations Organizations, to have all their employees sign employment contracts prior to having them commence work because if the Employee works for a period of at least 12 months of continuous employment he or she will become a permanent Employee according to the Canada Labour Code. It then becomes very difficult, if not almost impossible, to terminate the Employment of such Employees absent just cause.
4. HUMAN RIGHTS – EMPLOYERS/EMPLOYEES THAT ARE BOTH FEDERALLY AND PROVINCIALLY GOVERNED
Did you know that if you refuse to hire an employee or if you chose to terminate an existing employee because of:
- Age (too old)
- Family obligations (unable to locate a babysitter)
- Addiction to alcohol or substances, which is considered a disability
you are exposing yourself to a Human Rights complaint for discrimination based on a prohibited ground under the Human Rights Code or the Canadian Human Rights Act.
Did you know that if an Employer has terminated your employment and you have done nothing wrong to merit the termination, you are considered to be wrongfully dismissed? As a result, the Employer has an obligation to pay you both termination pay under the ESA 2000 together with benefits during the termination period and possibly severance pay under the ESA Act 2000 if you have worked for more than 5 years and the Employers payroll is more than 2.5 million dollars. If there is no employment contract limiting your severance or if the Employment contract is null and void you may be able to claim notice in accordance with the common law which is way more generous. At common law, damages are substantially higher and it will take into account your age, the years of service and the position you held with the Employer prior to the termination. The older the Employee, the longer the service, the higher the position, the more substantial the amount of damages will be.
Did you know that if your Employer has made your life so miserable in an effort to get you to quit your job that you may possibly be able to advance a claim of Constructive Dismissal and obtain similar damages from the Employer as if you had been terminated from your Employment without just cause?
6. BUSINESS LAW (BUYING OR SELLING A BUSINESS BY WAY OF A SALE OF ASSETS VERSUS A SALE OF SHARES);
Did you know that there are many different ways to structure your business all with different risks and advantages? For example, a sole proprietorship is one of the simplest business structures but you remain personally liable and all your assets, including personal assets, can be seized if ever the business goes bankrupt. When faced with either the purchase or the sale of a business you require both the assistance of a competent lawyer and also the assistance of a competent accountant as he or she will determine how much money you will be able to retain from the proceeds of sale of the business as a vendor and the financial risks to which you may be exposed to if you are the purchaser.
7. REAL ESTATE:
Did you know that it is imperative to get advice from a lawyer before you sign an agreement of purchase and sale in order to protect your interest and there is no additional cost to you for seeking such advice? Once the agreement is signed your lawyer is often helpless to have the agreement amended as the deal has already been consummated. It can mean saving you thousands of dollars.
Example: If the agreement of purchase and sale provides that "HST IS INCLUDED IN THE PURCHASE PRICE" you may not be receiving the money that you were expecting on the sale of your commercial property as the HST portion of the sale must be remitted to the Government.
Example: Did you know that if you have a closed mortgage you will be faced with a penalty by paying off your mortgage before the end of the term. The penalty in some cases can be substantial and you will want to ascertain the amount of that penalty before you agree to sell your home.
8. CONTRACT LAW:
It is important before signing any type of contract that you review it and make sure that you know and understand what you are signing. It is wise to obtain independent legal advice so as to make sure you understand what your rights and obligations are under the contract.
Employment Contracts are a creature of their own as they must respect certain formalities and meet the minimum requirements of the legislation in order to be valid.
9. ESTATE LAW AND WILL
Having a lawyer draft a will and powers of attorney for you is very important. Every adult should have an estate plan specifying what should happen to their property when they pass away. While most people prefer to think that they are invincible and that death won't happen to them, we must remember that death is a reality of life that is for most of us unplanned. There is no specific age to be sick or to die. Having a will and powers of attorney in place that reflect the current situation of your life is imperative to preserving your assets that you have worked so hard to accumulate during your life time.