Monthly Archives: July 2009

ODSP Appeal Hearings: What to Expect

Posted in: "All, Administrative Law, Legalese Dictionary by Admin | No Comments Tuesday, July 21, 2009

So you’ve completed all the necessary steps to secure your ODSP (Ontario Disability Support Program) appeal, and a hearing date has been set. As an appellant, what can you expect at your ODSP appeal hearing at the Social Benefits Tribunal?

The hearings are held pursuant to the Ontario Disability Support Program Act (ODSPA).* The Social Benefits Tribunal, which conducts the hearing, is a impartial third-party unrelated to the Director who made the decision in question.

Because ODSP appeals invariably involve the appellant’s health records and intimate details of his or her daily living, the hearings are conducted in a private and confidential matter. Anything discussed in the room remains confidential, unless the appellant or the Director appeals the decision to the Superior Court. (Information disclosed on appeal then becomes part of public record at the Superior Court.)

The hearings are conducted in conference rooms, not court rooms.

The seating arrangement at the hearing is rather informal. Parties (the appellant, and the director, as well as the representatives) sit at a conference table and make their submissions seated. The hearing is chaired by a member of the Tribunal, who may be addressed as Member or Sir/Madam.

The appellants are generally allowed to take breaks or switch positions (such as standing up for a few minutes) as required. The Tribunal generally will accommodate an appellant’s special needs if the requests are not unreasonable.

However, the informal setting doesn’t mean that the hearing takes place in a casual manner, where anything goes. In fact, strict protocol under the legislation and the regulation dictates the scope for the hearing. If the requirements are not met, the appellant won’t be allowed to rely on the evidence in question.

At the conclusion of the hearing, the presiding member may

  • deny the appeal,
  • grant the appeal,
  • grant the appeal in part, or
  • to refer the matter back to the Director for reconsideration.

However, the decision will not be available at the conclusion of the hearing. Rather, a written decision along with reasons will be provided to the parties via mail within 60 days after the conclusion of the hearing.

If you require representation at your ODSP appeal hearing, please contact my office at 416-433-5531.

* S.O. 1997, c. 25, Sch. B.

Note: This article is provided solely for educational purposes. It should not be considered a substitute for the legislation, regulation, and/or the rules of the Social Benefits Tribunal. The practices mentioned above may have changed since the publication of this article. Readers should consult a licensed practitioner before relying on any of the information provided above.

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Ontario Apology Act Now in Force

Posted in: "All, Administrative Law, Legalese Dictionary by Admin | No Comments Friday, July 17, 2009

Sorry may no longer be the hardest word, at least in Ontario.

A while ago I posted the story “Sorry Seems to Be the Hardest Word,” on the (then) proposed Apology Act.* I’m glad to report that the Act has been passed and has been in force since April 23, 2009.

In a nutshell, the act “provides that an apology made by or on behalf of a person in relation to any civil matter does not constitute an admission of fault or liability by the person or an acknowledgment of liability in respect of a claim in relation to the matter, does not affect the insurance coverage available to the person making the apology and is not admissible in any judicial or quasi-judicial civil proceeding.”^

The Act stipulates that in civil proceedings, administrative proceedings or arbitrations, evidence of apology is inadmissible as evidence of fault or liability in connection with that matter.

However, there are exemptions – situations in which the Act is not applicable:

  • If the apology is given during testimony at a civil proceeding, then the apology is admissible as part of the testimony.
  • The Act does not apply to criminal proceedings.

In fact, section 3of the Act provides that “Nothing in this Act affects the admissibility of any evidence in a criminal proceeding, including a prosecution for perjury, or a proceeding under the Provincial Offences Act, or the use that may be made in the proceedings referred to in subsection 2 (3) [civil proceedings, administrative proceedings or arbitrations] of a conviction for a criminal or provincial offence.”

  • The Act does not affect the calculation of the limitation period under the section 13 of the Limitations Act.#

The legal community in Ontario largely welcomes the enactment of the legislation.

Says Mary Jane Smitt, a litigation partner with Blakes, Cassels & Graydon LLP in Toronto: “Although there will be lawyers who will be cautious about advising clients to apologize, … one of the big culture shifts in the law over the last decade has been the consideration of other means to resolve disputes. Apologies protected by the legislation is one more tool in this arsenal.”+

Perhaps the spirit of the Act is best captured by the spokesperson for the Ontario Ministry of the Attorney General, Brendan Crawley, who said “Saying sorry for an accident or wrongdoing is the right thing to do.“**

I couldn’t agree more.

^Explanatory note, extracted from the Bill as introduced.

*S.O. 2009 c. 3

#S.O. 2002, c. 24, sch B

+Donalee Moulton, “Legal profession not sorry to see apology legislation” The Lawyers Weekly (17 July 2009) 1

**Ibid.

Note: This article does not constitute legal advice. It is not offered as a  substitute for the legislation. The legislation may have been amended since the publication of the article.

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Pet Travelling Made Easy – Pet Airways Take Off!

Posted in: "All, Animal Welfare, Business Development by Admin | No Comments Friday, July 17, 2009

Generally I only blog about law related stuff. However, a story about Pet Airways piqued my attention, and I’d like to share with my readers.

Billed as the first pet-friendly commercial airline, Pet Airways is a flight operator that flies pets in the main cabin, rather than in the cargo area.

  • How it works:

You drop off your pet at the airport “pet lounge” and then check-in for your pet. Your pet gets to hangout at the lounge and takes a potty break before the flight. Your pet then gets boarded into one of the secured pet carriers (provided free of charge) in the main cabin. a pet attendant checks on your pet every 15 minutes or so. The plane is well-lit and well-ventilated. Upon arrival your pet can be picked up at the destination airport’s pet lounge.

  • What if the flight is delayed or canceled?

Like human air travel, delays and cancellations happen. If the flight is delayed shortly, your pet gets to hangout on the plane or in the lounge. If there’s a long delay, your pet is board at the nearest affiliated pet resort at the company’s expense. Just like human travel.

  • Meal and entertainment

The “pawssengers” all face the aisle, so they get to watch their neighbours for entertainment.(Dogs, cats and others are put in separate areasqueasy from motion sickness. In fact, the company vet suggests that you don’t feed your pet four hours prior to flight.

However, if the pet attendant sees that pawsengers badly need some water or something to chew on, he or she will give them a little to make them feel better.

  • Can I fly with my pet?

No. This is a pet-only airline.

  • What animals are restricted?

Humans.

For more information, visit the website at www.petairways.com.

***

Although the operator is currently U.S. based with few restrictions (other than human passengers), I remind readers that the Province of Ontario restricts or prohibits the importation of certain animals and endangered species, including pit bulls.

Would be passengers (or rather, “pawssengers”) should have their human guardians comply with local animal importation restrictions.

Note: This is not an endorsement. (Although it sounds almost like one.)

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A Brief Note on Personal Information and the Internet

Posted in: "All, "Brief Note" Series, Business Development by Admin | 1 Comment Wednesday, July 15, 2009

If you’re into social networking websites, you’ve probably seen a widely circulated list of questions, resembling this one I recently received.

  1. What time did you get up this morning?
  2. How do you like your steak?
  3. What was the last film you saw at the cinema?
  4. What is your favourite TV shows?
  5. If you could live anywhere in the world where would it be?
  6. Favourite place to eat?
  7. Favourite dressing?
  8. What kind of vehicle do you drive?
  9. What are your favorite clothes?
  10. Where would you want to retire?
  11. Favorite time of day?
  12. Where were you born?
  13. What is your favorite sport to watch?
  14. Are you a cat or a dog person?
  15. Are you married?
  16. Always wear your seat belt?
  17. Been in a car accident?
  18. Any pet peeves?
  19. Favourite ice cream?
  20. Favourite fast food restaurant?
  21. Do you own or rent?
  22. How many times did you fail your driver’s test?
  23. What’s your porn name?

As you can see, several sensitive questions regarding personal information were embedded in this questionnaire. While it seems harmless to share “whether you are a cat person or a dog person,” answers to some of the questions have the potential of being misused for ID theft.

The social networking sites invariably encourage users to build their network. Hence, a friend of a friend of a friend whom you’ve never met may end up with access to your profile and information. If personal information is obtained by rogue individuals, you have virtually no control over how it may be used.

For example, many institutions have security questions in place such as “What’s your favourite ice cream?” (question #19) or “What’s your favourite sport?” (question #13)

Interestingly, the most incriminating question, in my opinion, is #23, “What’s your porn name?” As the unwritten rule goes, your porn name consists of your first pet’s name as the given name, and the name of the street that you grew up on (or your mother’s maiden name) as the surname. The answer to this one question often holds two or more keys to security questions at major financial institutions.

Question #8 asks what kind of car do you drive. Question #12 asks your birthplace. Question #15 asks whether you are married. Question #17 asks whether you’ve been involved in a car accident. Question #21 asks whether you own properties.

By combining the answers to the questions above with other personal information that’s already available online, it’s indeed possible for someone to fraudulently fill out a seemingly legitimate line of credit application on your behalf.

The consequences may include the sale of your email or home address to commercial mailing list companies, or even ID theft.

So, are you a dog person or a cat person?

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PSWLaw Proudly Supports the 2009 Police Games

Posted in: "All by Admin | No Comments Tuesday, July 14, 2009

I’m pleased to announce that PSWLaw is a proud sponsor of the 2009 Police Games, hosted by the Toronto Police Amateur Athletic Association.

The event takes place on Saturday, October 17, 2009 at the Rogers Centre. The proceeds of the event go to the Toronto Police Widow and Orphan Fund.

PSWLaw gives back to the community.

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Bars to ODSP Appeal

Posted in: "All, Administrative Law, Legalese Dictionary by Admin | No Comments Friday, July 10, 2009

Not all ODSP (Ontario Disability Support Program) cases can be appealed to the Social Benefits Tribunal. In fact, the legislation sets out several bars to an ODSP Appeal.

Under Section 21 and 22 of the Ontario Disability Support Program Act,* no appeal to the tribunal will be accepted on the following matters:

  • A decision respecting discretionary income support
  • A decision of income support in exceptional circumstances
  • A decision to provide a portion of income support directly to a third party
  • A variation, refusal or cancellation of income support caused by an amendment to the ODSPA or the regulations
  • A prescribed decision
  • A decision regarding employment support
  • A decision of which an internal review has not been requested

In addition, the following matters cannot be appealed under the regulation:+

  • A decision of the Director not to extend the time
  • A decision to refuse, suspend or cancel income support or to reduce income support on the death of a member of the benefit unit
  • A determination of which an application is deemed to have been withdrawn
  • A decision to set a review date
  • A decision of the Director that the effective date of an applicant’s eligibility for income support is on or before the day on which the application is completed.
  • If an applicant is a recipient of basic financial assistance under the Ontario Works Act, 1997, a decision of the Director that the effective date of an applicant’s eligibility for income support is on or before the first day of the month following the month in which the application is complete
  • A new determination of the effective date of eligibility for income support.

Finally, there is also a time limit for an ODSP appeal:

  • The prescribed time for appealing a decision is 30 days after the Director’s decision is final.
  • No appeals shall be commenced more than one year after the date of the Director’s decision.

Note: This article is not substitute of the legislation. The legislation may have been amended since the publication of the article. This article does not constitute legal advice. Readers should seek independent legal advice from a qualified practitioner.

* 1997, S.O. 1997, c. 25, Sch. B

+O. Reg. 222/98, s. 57

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A Brief Note on Judicial Pragmatism and Public Policy

Posted in: "All, "Brief Note" Series, Family Law, Legalese Dictionary by Admin | No Comments Wednesday, July 8, 2009

In the post-911 era, courts in Canada and in the U.S. have shied away from utilizing public policy in their jurisprudence. For example, the current chief justice of the U.S. Supreme Court contends that if “a case can be decided on narrow grounds, it should be.”^

In Canada’s Reference re Same-Sex Marriage,* the federal government posted four questions to the Supreme Court on the legality of same-sex marriage.

As it was a contentious social issue at the time, the Court decided to answer the questions on narrow and technical grounds: Yes, the Parliament has jurisdiction to legislate same-sex marriage, and yes, the proposed same-sex marriage is consistent with the Charter.

However, when asked whether the opposite-sex requirement for a civil marriage would be consistent with the Constitution, the Court declined to answer as it was inappropriate.

When the reference was released, the Court’s answer was considered “solid,” as the questions were answered on narrow grounds without reference to “public policy.” Accordingly, the answers could not be criticized much, at least from a law professor’s point.

Some observers, both proponents and opponents of same-sex marriage, were disappointed that the Court did not approach the answer as they would have liked. The Court was decidedly pragmatic.

In the era of judicial pragmatism, it’s quite refreshing to see new cases where the courts make their decisions in part on public policy grounds.

Public policies that the courts rely on in recent years are typically well-established, for example, freedom from restraints of trade as discussed in my previous blog “Ambiguous and Uncertain Non-Competition Clauses.” Other examples may include the courts’ refusal to enforce contracts requiring chastity, contracts relating to illegal acts, and contracts that are penal in nature. However, many of these have long been legislated.

^”Fairness for Firefighters” The Economist 329:8638 (July 4, 2009) 26

*[2004] 3 S.C.R. 698, 2004 SCC 79

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Ambigious and Uncertain Non-Competition Clauses

Posted in: "All, Business Development, Legalese Dictionary by Admin | No Comments Wednesday, July 8, 2009

There are several things that may render a non-competition agreement unenforceable in law. For example, a non-competition agreement may be held unenforceable because it’s commercially unreasonable. Besides the (un)reasonableness of the terms, the agreement may also be held unenforceable if the terms are vague and uncertain.

Consider the recent ruling by the Supreme Court of Canada in Shafron v. KRG Insurance Brokers (Western) Inc.,* where the court was called upon to determine whether a non-competition agreement was enforceable wherein the former employee undertook not to compete with his employer in the Metropolitan City of Vancouver once he departed from the company.

It turned out, that no Metropolitan City of Vancouver has ever existed in British Columbia.

The trial judge in this case ruled that the wording “Metropolitan City of Vancouver” was neither clear nor certain and was unreasonable. Therefore he dismissed the action.

The B.C. Court of Appeal, interestingly, took a different approach. The Court of Appeal found while the term “Metropolitan City of Vancouver” was ambiguous, it was possible to construe it as applying to the City of Vancouver and the surrounding municipalities.

On appeal to the Supreme Court of Canada, it was held that the term in question was indeed ambiguous and uncertain. The non-competition agreement was thus unenforceable.

The Court was reluctant to “read into” the contract by guessing what the parties had in mind when the agreement was entered into as it would encourage employers to draft overly broad restrictive covenants. The Court accordingly condemned the Court of Appeal’s attempt to “rewrite the geographic scope in the restrictive covenant to what it thought was reasonable.”

*[2009] S.C.C. 6, rev’g [2007] B.C.C.A. 79 (CanLII), com’g [2005] B.C.S.C. 1611 (CanLII)

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Facebook Security Concerns

Posted in: "All, Business Development by Admin | No Comments Tuesday, July 7, 2009

Further to my post “Facebook No-Nos” yesterday, it seems like the popular social networking website has been in a lot of hot water lately. For example, if you Google the words “Facebook” and “Security,” you’ll likely get the following results:

  • Personal information and family photos of UK’s next head of MI6 foreign intelligence services were obtained via Facebook and published by a daily newspaper.
  • Social Security numbers can be easily guessed by cybercriminals for identity theft based on information users provide on Facebook, MySpace and other social networking sites, a study found.
  • Prospective university students are falling prey to a growing Facebook fraud as marketers set up fake academic groups to vacuum up their personal information and sell it.

As the social networking sites continue to grow, users must be vigilant on what information they share, and whom they share it with.

Many users have been realizing, once they’ve actually reviewed their privacy settings, that they’ve been sharing more information online than they thought they had been. For example, you may have added your boss (or your grandmother) at one point but forgotten about it when you posted your latest drunken bash online.

For professionals who depend largely on their public image, such as lawyers, accountants, or therapists, concerns about sensitive information shared online becomes even graver.

While social networking sites may be helpful in developing visibility and expanding your client base, they can also cause considerable harm if the wrong information gets into the wrong hands. Let the slip of the incoming head of MI6 be an example.

Remember, information wants to be free. Once it’s released into the wild (cyberspace), you have little or no control over where it goes next.

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Facebook No-Nos for Divorcing Couples

Posted in: "All, Family Law by Admin | No Comments Monday, July 6, 2009

Recently Time magazine posted an interesting story on “Five Facebook No-Nos for Divorcing Couples.” The points listed below are taken from the article; comments are my own.

  • Don’t Show Off

While there may be nothing inherently wrong with sharing your latest trophies with the world, pictures of your brand-new cruise boat or luxury vacation may reveal inconsistencies between your perceived lifestyle and your sworn financial statement.

  • Don’t Let It All Hang Out

Pictures revealing your poor judgment (no matter how justifiable your actions seem under the circumstances) won’t help you win custody battles.

  • Don’t Get Tagged

Even if you’ve carefully deleted all inappropriate information about you, your friends may decide that it’s funny to post a picture of you passed out in the bathtub, or somewhere even worse. Search your own name periodically. Or better yet, behave yourself.

  • Don’t Vent

“You think your kids never use a computer?” says the author. Venting, particularly when it involves personal attacks, casts a shadow on your character when it comes to parenting skills.

  • Don’t Cut Everyone Off at Once

Your relationship with mutual friends and in-laws, believe or not, may survive the nasty break-up. “People need time to adjust,” says the author. Cutting off all ties with your ex is like painting yourself into a corner: you have to wait a long time before you get to step out.

As a family law lawyer, I can’t say I disagree with any of the points above. Facebook and other social networking sites have become so popular that they are generating new kinds of privacy concerns. Once your personal information is released into cyberspace, you retain little or no control of it.

My advice: think twice before posting something that you wouldn’t say or do on a crowded bus.

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