A word of caution to employers and employment lawyers. A probation clause in an employment contract may not be enough to avoid liability for wrongful dismisal damages even if the dismissal occurs during the probationary period. Check out this article on an Ontario Small Claims Court’s wrongful dismissal ruling courtesy of the Toronto Star.
‘

It’s been a while since we updated the blog.  So what better way to breath some fresh air into our blog by posting about a man reprimanded for flatulence.  The Smoking Gun reports that a Social Security Administration (yes, that reads ASS backwards) has withdrawn a reprimand issued to a worker for excessive flatulence.  Now that’s a hoot.  Apparently, the man had never seen the inside of a bathroom and had been passing gas as much as 9 times a day.  And those are only the non SBDs (silent, but deadly) that were attributed to this fellow.

The Smoking Gun (talk about a great name for a website reporting such a story) reports that after the SSA got wind of the situation, it thought the reprimand smelled of bad taste and raised a stink with the reprimanding manager which subsequently resulted in a withdrawal of the reprimand.   So far, there has been no charge of ASSault with a deadly weapon, and the employee looks forward to putting the matter behind him.

Q. I have a loan that has gone unpaid since January 2, 2010.  Am I out of time to sue in the Small Claims Court?

There are time limits to bring a lawsuit in any court, including the Small Claims Court.  A defendant has a defence if a claim is out of time. The governing law is the Limitations Act.  Under section 4 of the Limitations Act, one has until the second anniversary from the date of discovering a claim to commence a lawsuit.   After the second anniversary, your claim can be considered “statute-barred”.

The key word is “discovery”.  In other words, one may have an outstanding debt that is more than 2 years old, but if it was not discovered until later on, then he may still have time to commence a claim.

To apply this to your case, I would need to know when you discovered that the loan was going to be unpaid.  Are you stating in your question that you knew the loan would be unpaid since January 2, 2010?  If that is the case, then you will likely be found to be statute-barred from making the claim.

Note, even in the case where you are possibly out of time, you are not precluded from filing a lawsuit.  This is because the onus is on the Defendant to plead the limitation period in his Defence.  If the Defendant fails to plead that the action is “statute-barred” as a result of a limitation period, you can still win in court unless a judge takes it upon himself to raise the issue himself.

However, if, as I assume to be the case, your question means to say that the loan was made on January 2, 2010, then you need to assess when you discovered you had a claim.  This will depend on the facts.  Perhaps you have emails where the debtor promised to pay you, only to renege on his promises much later.  In such case you can arguably claim that you only discovered the claim less than 2 years prior and therefore are not statute-barred.

Of course, you are not allowed to be willfully blind to knowing that you will not be paid.  This is because the Limitations Act makes it clear that if a person ought to have known that he was not going to be paid back on a certain date, then the limitation period would run from that date.  So, for example, say you had text messages where the debtor promises to pay you back, but at the same time you received an email from a reliable source that the debtor has said explicitly he will not pay you, you may be arguably held to have known you were not going to be paid back on the date you received the email from the reliable source. (Note, you may be able to counter that just because a source said this, doesn’t mean you should be forced into believing its truth).

I cannot stress enough to our readers how important it is to not wait until the last second to get paid back.  The moment you know a debt outstanding that may not be paid back, ensure to calculate when the 2 year period would be so that you ensure not to miss it.  As I always advise, you should enlist the help of a legal professional to prepare your claim so that a potential limitation defence is limited (pun intended) to a minimum.

The information herein should not be taken as legal advice and may have been changed since published. Do not treat information provided in the article as a recommendation to act or refrain from taking action, or as legal advice. The information provided is not a substitute for the assistance of a licensed legal adviser.

Q. I was working for a company for 4 years.  A few months ago I went on maternity leave.  Last week I was called into the office and summarily dismissed without any notice or severance pay.  I was told it is because I went on maternity and am costing the company money.  Can I sue?

You most certainly can.  Frankly, I continue to be shocked that in this day and age with all the information available to employers, many continue to treat their employees disgracefully.  Amazingly, I receive many emails from women on maternity who are dismissed.

The term “wrongful dismissal” can be misleading.  Dismissed employees often believe that when their employment is terminated, they have an automatic right to sue.  However, the truth is that an employer is entitled to dismiss an employee when the employee’s services are no longer needed.  Therefore, the fact that an employee was dismissed, does not necessarily constitute, in and of itself, a “wrongful dismissal”.

Your case, however, is in actuality a “wrongful dismissal” in every sense of the term.  That is because under the Human Rights Code an employer is not allowed to discriminate against an employee for any reason, and particularly in this case, because of pregnancy or a resulting maternity leave.  (It is unfortunate that we need a law to protect something as obvious as to not discriminate.)

Now, of course, you have to prove that you were dismissed as a result of the maternity.  Indeed, it is common for employers when faced with allegations of discrimination to deny the charges.  Most employers, ignorant though they may about the laws of discrimination, know enough to not provide a dismissal letter that clearly states that the termination was a result of the maternity.  Getting witnesses can be difficult because often the only ones witnessing the employer’s infraction are other employees whom, even if summons to testify at trial, will not want to testify against their employer for fear of a reprisal (also against the law, incidentally).

So, what can you do?  For one, if possible, send an email to your employer confirming you were dismissed because of your maternity.  You should avoid making it obvious that you are trying to “build your case” for wrongful dismissal and discrimination.  Understandably, this may be difficult and, generally speaking, better to get advice from a lawyer before firing (no pun intended) off emails to your former employer.

Most judges or decision-makers understand the difficulties of obtaining hard evidence in such a case, and if you make for a credible witness you may be believed anyway.  This is particularly so if the dismissal does, indeed, transpire during maternity which would make it more than a mere coincidence to most legal thinkers analyzing the case.  (This may be different, of course, if you had acted so egregiously during your maternity, such as defaming the company, that perhaps your dismissal during the maternity can be viewed as coincidental.)

While it is possible your damages are for more than $25,000, I will assume for the purposes of this discussion that they are not.  (A full discussion of how a wrongful dismissal action including aggravating factors such as discrimination can be quantified is beyond the scope of this column but has been described in detail in past columns.)

In terms of what you can do, there are generally two approaches.  One is to sue in the Small Claims Court for wrongful dismissal damages and breach of the Human Right Code and the other is to file an application with the Human Rights Tribunal of Ontario.  The Tribunal is generally quicker than the Small Claims Court, though not always.  Another benefit to the Tribunal is that the damages, again, generally speaking, can be treated as general damages and not employment income subject to statutory deductions.   That said, because the Tribunal is limited to the discrimination element only and not damages for wrongful dismissal, the Small Claims Court can prove to be more lucrative.  Plus, if the matter settles or if a judge sets out different heads of damages, the discrimination portion of the Small Claims Court action can also be statutory-deductions free.   (Note, the writer does not purport to be a tax expert and those with taxation questions are always advised to seek counsel with an accountant or tax lawyer).

Your ex-employer ought to be ashamed of itself.  There is never an excuse to dismiss an employee because she went on maternity leave, period.  By being informed of your rights and taking appropriate action, you can make your former employer pay for its discriminatory practices.  As always, you should consult with a legal professional to discuss the particulars of your specific case before you do anything.

The information herein should not be taken as legal advice and may have been changed since published. Do not treat information provided in the article as a recommendation to act or refrain from taking action, or as legal advice. The information provided is not a substitute for the assistance of a licensed legal adviser.

Q. A few months ago I asked a friend to purchase plane tickets for me to Indianapolis to watch the Super Bowl.  I meanwhile had purchased tickets to the actual game. I just found out that he actually did not buy the plane tickets! I am so [upset]!! Can I sue him for the lost tickets and pain and suffering?

I definitely need some more information to provide a proper assessment, but let’s work with what we have.

The first question I need to understand is when you say you had a friend purchase plane tickets, is your friend acknowledging this or denying it?

If he is acknowledging undertaking to buy the tickets, then the obvious question is why didn’t he?  Does he have a legitimate explanation?  For instance, was it simply a case of not being able to book the tickets on the dates you requested?  After all, the Super Bowl is a popular event, and I can imagine that plane tickets would have been reserved long in advance.

Of course, the question then would be if your friend told you in advance that he was unable to purchase the tickets.  If so, then I believe he would be found to have acted reasonably in the circumstances.  Assuming he did not, then it would be a question of how far your friend’s responsibility to you extends.  This may or may not depend on whether or not he was doing it as a favour for you or if you were paying him for the service.

Now, if your friend is denying that you asked him to purchase the tickets, you would have the burden of proving that you did.  This can possibly be accomplished by emails, or text messages, or even Facebook posts or tweets.  Alternatively, you can take the old fashioned way of having witnesses or even a signed agreement if you had paid him for the service.

If, however, all you have is your word against his, you may have difficulty providing your case unless you are supremely more credible as a witness than your friend.  This is because if your friend is not a travel agent to begin with, which I am assuming, then a judge may be very hesitant to impose an obligation on a layperson to have purchased plane tickets for another.

Assuming you get past these first hurdles discussed above, then the next question is whether or not you could have mitigated, or lessened, your damages.

Your first obligation upon hearing that your friend did not get the plane tickets would be to see if you can purchase the tickets on your own, even at a higher price.  Let’s take the following simple example:  Say the Super Bowl tickets cost you $2,000 and you had agreed for your friend to purchase the plane ticket at a cost of $500.

Now, if you can find another seat at the same price, then you have no complaints against your friend because you have mitigated your damages completely.   (Yes, it is a hassle but in Small Claims Court little if any value is typically placed on “hassles” particularly because Small Claims Court in and of itself can be a huge hassle!) If you can only find another ticket for $1,000, you would still be expected to purchase it because at least you can still make it to the Super Bowl.  In such case you can claim against your friend for the $500 extra cost of the ticket.

(Note, another form of mitigation is to sell the tickets unless you are forbidden from doing so by law.)

In terms of damages, you can certainly claim for any out-of-pocket expenses such as lost hotel reservation, car rental costs, etc. again subject to mitigation.  You have asked about “pain and suffering” which is a very common question received from our Small Talk readers.  In my experience, save for the more extreme cases, “pain and suffering” is rarely awarded by the Small Claims Court.  This is because it is very difficult to put a value on such ambiguous damages, and judges prefer liquidated claims such as what you actually lost out-of-pocket.  I am not saying it is impossible, and if you get a sports fan for a judge who appreciates just how big of an event the Super Bowl is to football fans, then he/she may be more sympathetic to you!

As always, there could be many other considerations, and each case depends on its particular facts.  This column is not a substitute for obtaining quality specific advice for your case.  Wishing you (and your football team) the best of luck!

The information herein should not be taken as legal advice and may have been changed since published. Do not treat information provided in the article as a recommendation to act or refrain from taking action, or as legal advice. The information provided is not a substitute for the assistance of a licensed legal adviser.

If convenience and efficiency are important to you, you’ll be happy to know that case management software will enable your law office to avoid searching for physical files each time a client phones with questions, thereby eliminating the need for callbacks. And as an added benefit, since clients feel well cared for, client retention increases and your practice expands.

Basically, high quality case management systems are built for large and small law firm management for maintenance of detailed information on cases from a central database. These software systems allow you to track, route and resolve customer support issues easily and quickly – at any time of day or night and from any location.

You see, with a complete view of all your practice’s related information from a web-based case management system using Outlook for email and your favorite browser of choice, you can access your client files via a secure connection. No need to be concerned with software installation or maintenance on a network.

You’d be hard pressed to find businesses or individuals who aren’t using or at least familiar with Outlook email software as your law firm may already use it on a daily basis for communication with clients, opposing attorneys and other case related and business correspondence.

A comprehensive software system should include these key features:

Centralized Database

Complete Customer Relationship Management (CRM)

Outlook and Office Integration

Court Forms Merging

Faxing Capability

Law Practice Management

Mobile Integration

Time and Billing (With calendar scheduling and appointments)

For example, when you need contact information for a client or other business associate all you should be able to do is open Outlook where you’ll see an overview of address and phone number data, but also see integrated any correspondence sent, pre trial information, court case dates, witnesses, billing and any other activities or actions that are connected to an individual or case matter. Each step is recorded in the history of that particular file and logged in real-time.

Whether you are a single attorney looking to increase productivity or a law firm focusing on Customer Management (CRM), making use of a reliable legal case management software system that is both feature rich and easy to use will make your life easier, give you peace of mind, triple your operation efficiency and increase your profits.

This is guest post by Syd Irfan – Click here for the website. We do not necessarily endorse the views expressed above.

In a sign of the times, a woman’s legal battle has gone viral.  Heather Peters, a California woman, has chosen to sue Honda in Small Claims Court rather than by class action.  Beginning with a press release on her website, www.dontsettlewithhonda.org, the Associated Press has since picked up the story as well as Omar Ha-Redeye of Slaw.

As the proliferation of internet and social media increases, the legal community will continue to be impacted. This is further proof that Small Claims Court is as exciting and dynamic as ever and seen as a very real legal forum for resolving disputes.

I wonder how this will impact the class proceedings landscape in Ontario?

Q. Do you still get lots of emails at the Christmas season?  If you do, that’s sad.  Can’t we all just get along, especially this time of the year!

I assume your question is intended as rhetorical, and I appreciate the sentiment.  The reality, of course, is that many, if not most, people who sue in Small Claims Court, do so because they have no other choice and are at their last resort to try and collect money owed.  However, your question does raise an interesting discussion on steps we can take to avoid unnecessary litigation, and particularly within one’s circle of family and friends.

Document everything in writing.

Communication often becomes miscommunication because one or both of the parties failed to set out the terms of an understanding in writing.  All too often the common phrase I hear from clients is, “I never thought this would go to court and so I didn’t document anything”.  This is not an excuse, and in fact, if you think about it, probably none of the people you bump into in court ever thought that they too would one day be suing or sued over a bad business or personal relationship.  The easiest time to put something in writing is when the relationship between parties is positive.  Get into this habit.

Avoid business with family and friends.

Unfortunately, arrangements such as a neighbor-turned-contractor or brother-in-law-turned plumber, often end in dispute.  In such case, not only do you have 1 party suffering damages, but you also have a family or friendship destroyed in the process.  Remember, in litigation, witnesses are often needed and there can be nothing more divisive than when friends and family members have to take sides.   I understand that sometimes there is no way out of doing business with family and friends, and if such is the case, then see the above section regarding getting everything in writing. But if you can avoid business dealings with family and friends altogether, then even better.

Avoid conveying anger.

There is virtually nothing that escalates a fight more than anger.  The best way to try and defuse a touchy situation is by presenting your views to the disputing party calmly.  Yes, it is unbelievable that the person you trusted last year is, in your view, completely distorting the truth. But you are not staying calm for his benefit, rather for yours.  The reality is that if a dispute goes to court, there is a possibility you may not win, or you may win but not be able to collect, etc.  Staying calm will result in better prospects of resolving your differences early on and avoiding costly and time-consuming litigation down the road.

It is unfortunate when you see two parties fighting it out any time of the year, and particularly during the holiday season.  That said, I cannot blame one party for suing another at any time, if he feels he has a legitimate claim and is owed money.  But, we can do our utmost to avoid such claims to the extent possible by taking the necessary proactive and preventative measures.

Wishing all our readers a happy and healthy holiday season.

The information herein should not be taken as legal advice and may have been changed since published. Do not treat information provided in the article as a recommendation to act or refrain from taking action, or as legal advice. The information provided is not a substitute for the assistance of a licensed legal adviser.

Q. I play in a hockey league and work in construction.  I got into a fight with another player. I have been unable to work my construction job due to the side effects.  Can I sue the other player for lost income?

A hot topic these days surrounds fighting in hockey.  Indeed, more and more research is being devoted to the effects of the hockey fisticuffs, and it is no surprise that we are receiving a question concerning such ramifications.  As is often the case, this case raises a number of issues that cannot be covered in one column, but what follows is a discussion of what I feel is the main issue.

In past columns I have written about the doctrine of volenti non fit injuria which means “to a willing person, no injury is done”. In more simple terms, it refers to one who voluntarily accepts the inherent risk of an endeavor.

This doctrine frequently arises in the sports context.  For example, consider a spectator attending a baseball game who gets hit in the face with a foul ball.  Arguably, in an ensuing lawsuit by the victim again the baseball stadium, the player, etc., the defendants can raise the defence of volenti non fit injuria by arguing that the injured party voluntarily assumed the risk of such injury by attending a sports event where he knew that foul balls can be hit into the seating area.

Applying this doctrine to your case, it would depend on the facts and circumstances surrounding the fight.  The fighter who caused you injury may argue that by playing in a hockey league you voluntarily accepted the risk of getting injured once you stepped onto the ice, given the physical nature of hockey.

However, I assume that when you say you play in a hockey league, you mean recreationally.  I therefore can surmise that the league you play in does not allow for fighting.  That being the case, you can respond by stating that, yes, you were aware that you may get injured in the course of a reasonable hockey play, but since fighting is not allowed in the league, then you could not have anticipated injury occurring in such a fashion.

But the analysis does not end there.  We have to examine the nature of the fight itself.  Was this a situation where you agreed to fight or were you taken by surprise?

If you were taken by surprise, for example the other player “jumped you”, then the other party would have a hard time arguing that you readily engaged in a fight in which you knew you may suffer injury.

But if you were a willing combatant, the other fighter can argue that you assumed the risk of injury resulting from a fight, because you knew or ought to have known that you can be injured by engaging in the fight.

However, you may respond that, yes, you knew you may be hurt physically such as suffering a black eye or even a broken nose, but you had no idea that there would be long term repercussions that could affect your employment.

In my view, the latter argument is weak, though, for 2 reasons.  For one, as medical research advances, it is becoming more and more obvious that fights can have long term effects on one’s health.   One cannot be willfully blind to the potential dangers of hockey fighting.  Second, and perhaps more importantly, the same way you would want to argue that you did not know that there could be long-term effects of fighting, the other fighter can make the same argument, i.e. that he could not have reasonably foreseen that you would be injured and prevented from working as a result of the fight.  In such a case, the damages you suffer, i.e. your loss of income, may be considered too “remote” to be held against the other party’s actions.

So as not to raise the ire of personalities like Don Cherry and other hockey “traditionalists” who believe fighting has a place in the game, I have steered away from expressing my opinion on the subject.  However, overall, I believe it is becoming clearer that fighting can be extremely hazardous to one’s future health.  And, with respect to legal liability, the chances of holding another party liable when one is a willing combatant in a fight, in my opinion, is slim, though of course each case must be determined on its merits.

The information herein should not be taken as legal advice and may have been changed since published. Do not treat information provided in the article as a recommendation to act or refrain from taking action, or as legal advice. The information provided is not a substitute for the assistance of a licensed legal adviser.