I am pleased to announce that the following new contents have been added on this site.
Coming soon in my blog:
The other day I wrote about the Landlord and Tenant Board. (Click here to read the blog.) Today I want to talk about the Social Benefits Tribunal, another provincial administrative tribunal that I appear before on a regular basis.
The Social Benefits Tribunal (SBT) hears appeals of decisions made under the Ontario Works Act and the Ontario Disability SupportProgram Act. While earlier act governs social assistance payments and benefits, commonly known as welfare benefits, the latter one governs assistance to individuals with disabilities.
The Tribunal is an independent body created under provincial legislation. The adjudicators (akin to judges) are called Members of the Tribunal, and are addressed as Mister or Madame Member. The Members are independent third parties who are in no way associated with or related to the previous decision-makers of the matters under appeal.
Common appeals to the SBT include the following:
In contrast to the Landlord and Tenant Board, Legal Aid Ontario does not provide duty counsels to give summary legal advice to those who appear before the Tribunal. Instead, legal assistance is provided by lawyers who are retained through Legal Aid Certificates given by Legal Aid Ontario to those who qualify. As the legislative intention under the acts mentioned above is to provide assistance to the most vulnerable members of society, appellants with genuine issues are generally qualified for Legal Aid.
Decisions by the SBT are not carved in stone. A party that does not agree with the decision may ask for a reconsideration. If the decision is confirmed under the reconsideration, it may be further appealed to the Divisional Court of the Superior Court of Ontario for a judicial review.
If the judge at the Divisional Court finds an error in law, or finds that the decision by the SBT is unreasonable, the decision will be rescinded. The Divisional Court does not subsitute its own opinion for the decision; rather, the matter is referred back to the Tribunal for a fresh hearing.
Internet shopping is an icon of the cyber age we live in. Once a novelty, now it is part of our daily living. Recently, I was consulted by clients who do their business online. I’d like take a few moments now to share some of the issues of internet shopping with you.
Issue: Terms of Payment
Because online buyers and sellers do not deal face-to-face, credits come with high risk, as do installment payments. Scams, where payments are not honoured or goods not received, are common.
Therefore, I suggest to my clients that they use payment services that can be tracked and confirmed. For example, either PayPal or credit card payments are preferrable over money orders or cashier’s cheques. Never send cash in the mail.
Note that these services are not free. You should include these charges when you’re comparing online shopping with offline shopping.
Issue: Items Received Differ Substantially from Expectation.
Because of the nature of virtual transactions, buyers can only rely on pictures and other remote representations of the seller. Buyers generally have little or no independent verification as to the accuracy of the description of the item.
One of the biggest problems I have encountered is that unsavoury vendors often pass off counterfeit goods as genuine ones. In this scenario, although in theory there are remedies in law that may provide some relief to the buyers, realistically it is often nearly impossible to pursue these remedies.
I suggest to my clients that buyers must be aware when it comes to online transactions. Only buy from reputable vendors who provide detailed, reliable information on their goods. If the deal seems too good to be true, it probably is.
Issue: Dispute Resolution
Even if there is no misrepresentation involved in the transaction, goods may get damaged or lost when they are shipped. Buyers may also become unsatisfied for other reasons, such as unreasonable delays, or unexpected customs exams, charges, or taxes.
Dispute resolution becomes particularly difficult when buyers and sellers do not reside in the same jurisdiction, as is the case in many internet transactions.
Although in Ontario you may bring a suit against foreign residents as long as they have a real and substantial connection with Ontario, the concern lies in the enforcement of the final ruling. Foreign defendants generally have few if any assets in Ontario, and enforcement of an Ontario judgment outside of the jurisdiction may encounter many difficulties, including concerns of cost.
In summary, online transactions involve certain risks that the buyers and sellers must be prepared to accept. While it is true that many online transactions offer substantial savings, you should pay attention to the following aspects:
Most people have heard of notaries public, but few know what they do. I’d like to talk about what notaries public do and also how to become one.
Notary public is one of the oldest professions in existence, dating back to Roman times.
In modern times, the power of notaries public varies from jurisdiction to jurisdiction.
Broadly speaking, Notaries public are essentially state-appointed officers who are entitled to administer oaths and attest to the authenticity of documents. In certain civil law jurisdictions, notaries public are entitled to practise law. However, this is not the case in most common-law jurisdictions, such as Ontario, UK, or the US.
In Ontario, notaries public are appointed under the Notaries Act. All lawyers in Ontario are entitled to apply for an appointment (with a small filing fee); non-lawyers who are Canadian citizens can become notaries public subject to examination by a judge or a public servant, although their notarial power may be limited in territory or in function, or both.
In plain language, the notary public provides the following services (please refer to the Notaries Act for the exact wording):
Most clients think notarization makes a document more important or more acceptable in law; this is a myth. Over the years of my law practice, I’ve had clients ask me to notarize various documents. However, legally speaking, most of the documents have not required notarization, and notarizing them would have meant absolutely nothing in law. Thus, at times I find myself feeling conflicted while dissuading clients from obtaining my notarial services.
This week I had 3 cases before the Landlord and Tenant Board. Today I want to talk about residential leases, legally referred to as residential tenancies.
In Ontario, residential tenancies are governed solely by the “Residential Tenancies Act.” This act was enacted in 2006, replacing the old Tenant Protection Act. The act is intended to offer a comprehensive code in outlining the rights and obligations between landlords and tenants.
As such, all matters concerning residential tenancies in Ontario that involve less than $10,000 can only be brought before the Landlord and Tenant Board.
While the Board is technically an administrative tribunal, the Board maintains certain power of the Superior Court, including the authority to summon witnesses, to award monetary damages, and of course, to evict tenants.
The legislation recognizes the power imbalance between landlords and tenants. Landlords are typically in a more powerful position as they generally have more money, and may select tenants from various potential applicants. Hence, there are only a handful of grounds on which a landlord may terminate a lease before the lease-end without the consent of the tenants. Some of the grounds include: willful damage to the property, overcrowding, substantial interference to the landlord and other tenants; safety concerns, and illegal conducts.
On the other hand, tenants generally can get out of a lease if they are able to sublet or assign the lease to someone else. Although the consent of the landlord is still required, the law states that such consent cannot be arbitrarily withheld by the landlord.
If you are a tenant having trouble with your lease, you can obtain free summary advice from the duty counsel at the Board or from a Legal Aid clinic. If you have a LAO certificate for representation before the Board, please feel free to contact me for more information.
For small-scale landlords, Legal Aid funds a Landlord Self-Help Centre that provides free information and referral services. Legal Aid does not provide assistance to commercial landlords.
I recently spoke to a few high school students who are interested in becoming lawyers. I told them that to be eligible for the bar admission course in Ontario, you must have an undergraduate degree from an accredited law school. I’d like to share with you now how to get into a law school.
High School
It doesn’t matter what you take in high school; the bottom line is that you need to have decent enough marks to be accepted into an university (and not a college!)
I recommend that you take English seriously, whether they are a native tongue or not.
Mathematics and sciences should not be neglected in high school because logic is an important part of the law.
University
You need at least two years of regular university to be eligible for admission to a law school. (For U of T Law, you need at least three years.)
While a degree is not necessary, most students choose to finish their degree before entering law school. The extra 1 or 2 years (depending on your degree) of academic experience will also improve your skills in time management and exam preparation.
It’s true that there is no “pre-law” curriculum required for law school.
However, I recommend at least one philosophy course, in addition to any other classes that you are interested in. Regardless of the specialization that you choose, you should aim to become a critical thinker.
While it’s important to have good marks, I also encourage you to participate broadly in extracurricular activities, such as involvement in student government, sports, and other student organizations. Many law schools nowadays prefer students with diverse experiences and strong leadership skills.
LSAT
The Law School Admission Test, or LSAT, is mandatory when applying to law school. The higher you score on the LSAT, the better your chance of being accepted to a law school.
Your LSAT score reflects how well you’ve done on the test in comparison with others. The absolute high score is 180, while the lowest possible score is 120.
You’ll have a decent chance of admission to a law school in Canada if you can score above 160; if you can score above 175, you may even get accepted into Harvard or Yale. You may take the LSAT as many times as you wish. However, some schools take your averaged LSAT score; others consider only your best.
In my opinion, the best way to get a high score on the LSAT is to practise. There’s no need to enroll in expensive prep-school; you’ll do just fine with plenty of solitary practice.
Rather than practising on mock exams, I suggest you consider buying past exams from the LSAC (Law School Admission Council). Although the authentic exams are not cheap, they’re a very good investment. Past exams gives you an authentic taste of the speed and skills you’ll to excel.
Tomorrow I have two hearings scheduled, and I will be conducting examinations-in-chief and cross-examinations to witnesses. I’d like to take this opportunity to give my readers a few tips about being witnesses.
First of all, if you are ordered to appear before a court or a tribunal, you must show up on time. In criminal hearings, a subpoena is issued; in civil ones, a summon. If you do not appear as ordered, a bench warrant may be issued for your arrest. You may then be found in contempt of court, and may face a fine or jail time, or both. Depending on the type of hearing you are attending, you may want to arrive early for the security check.
Besides being punctual, you should dress conservatively. Many lawyers tell their client to dress as if they were going to a funeral; I don’t think that’s far off the mark. I tell my clients to dress as if they were going to an interview for a job that they really want. By dressing properly, you show your respect to the court, and are likely to be taken more seriously.
On the witness stand, you give your testimony by answering the counsel’s questions.
In examination-in-chief, you answer open-ended questions as if you were telling a story; in cross-examination, you answer leading questions by answering yes or not. However, this methodology is not carved in stone. If you feel you need to explain your answers, you may do so, even in cross-examination. The counsel, unlike in the movies, may not stop you from explaining your answer if your explanation is relevant to the question.
Perhaps most importantly, you need to pay attention to what is being asked. In my experience, many witnesses go off track giving irrelevant answers because they aren’t paying attention to what has been asked. By going off track, you not only waste valuable court time, but also distract the court’s attention from the case.
You give your testimony under oath or affirmation. As such, you must tell the truth to the best of your recollection.
If you’re not sure what you’re being asked, ask for clarification. If you need some time to think, take a sip of water and pause for a minute. The worst thing you can do when testifying is to rush into an answer that is not true. A false statement spreads like a virus, and soon your entire testimony will be contaminated. Once you are caught giving inconsistent statements, you lose your credibility entirely. You may also face perjury charges if your answer is patently false or misleading.
Being a witness can be stressful and overwhelming. If you’re preparing to be a witness, I hope the tips above help you alleviate some of the anxiety you may encounter.
(Please be advised that this article is not legal advise, and may not be relied on as such.)
Today I want to talk about getting new assignments at work. I’m sure many of you have faced new assignments at work that you didn’t bargain for. What exactly are your rights in law?
Let’s assume that you signed an employment contract clearly stating that your job-duty is to do Task A. Now your boss walks in and demands you start doing Task B, which is completely unrelated to your old job Task A. Do you have to do it?
Let’s start from the easiest scenario. Your boss offers you a promotion for doing Task B. If you agree to the promotion and start doing Task B, then you have agreed to a new contract. No problem.
But what if Task B comes without change for your pay and benefits? What if it even comes with a demotion? Do you have to accept it?
According to the Ontario Court of Appeal in the recent case of Wronko v. Western Inventory Services Ltd. (2008) 90 O.R. (3d) 547, you actually have three options:
Option #1:
You can accept the change in order to keep your job. By accepting the change, you form a new contract with your employer in law, and cannot then change your mind later on and ask for remedies.
Option #2:
You can reject the change, quit the job, and sue for damages. In law, the employer breaches the old contract by requiring you to do Task B instead of Task A; you are therefore entitled to damages as a result of the breach.
Option #3:
You can reject the change, and still keep working for your employer. When you do so, your employer can terminate the (old) contract and offer to re-hire you on the new terms.
The employer, upon terminating the old contract, is obliged to give notice of termination. After the termination, if you agree to be rehired, then the new terms will be binding.
On the other hand, if your employer does not insist on imposing Task B on you, there is no new contract. Your duty remains unchanged, and the new terms are not binding.
One thing to keep in mind is that, when terminating an employee, the employer has a duty to treat the employee fairly and with dignity. If the employer’s conduct is humiliating or unreasonably harsh, the employee may be entitled to additional damages.
@PSWLaw_TO