Monthly Archives: November 2009

NYU Unveils MSL in Law and Jewish Civilization

Posted in: "All by Admin | No Comments Friday, November 27, 2009

I regularly receive invitations to further my academic credentials. Most of them are the garden variety: Master in Law (LL.M.) in corporate financial, in administrative law, in legal research and writing, in public governance, in alternative dispute settlements …, you name it. Here’s a novel and a rather specialized program: law and Jewish civilization offered by New York University.

According to the website description, the Master in Study of Law (M.S.L.) in law and Jewish civilization is not the same as an LL.M. because it does not require a prior law degree. This means that the MSL program is open to a wider range of applicants.

According to the website:

The program provides a foundation in some of the principal texts of Jewish Civilization over the centuries, complemented by either a solid grounding in the fundamentals of legal process, legal reasoning, and legal institutions for those without prior legal education, or an advanced exploration in jurisprudence and Jewish Law for those with law degrees. Students will enroll in new and existing classes in the Law School as well as benefit from courses offered by the University’s other graduate schools. Students also will be directly connected to the goings-on of the Tikvah Center for Law & Jewish Civilization, and the center’s fellows and scholars.

For more information, please contact NYU School of Law, 40 Washington Square South, NY, NY 10012, or visit their website at www.nyutikvah.org/masters/index.html.

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A Brief Note on Bill 168, Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace)

Posted in: "All, "Brief Note" Series, Administrative Law, Business Development by Admin | No Comments Friday, November 27, 2009

In April the Ontario government introduced a bill to address violence and harassment in the workplace by requiring employers to prepare a policy with respect to workplace violence and harassment. Bill 168,* Occupational Health and Safety Amendment Act, has been carried through second reading, and is now before the Standing Committee prior to third reading. It is expected to receive Royal Assent in 2010.

While some may cry foul against the anticipated burden of further statutory compliance, Toronto-based labour and employment lawyer Glenn Wheeler^ believes that the benefits of the proposed requirement can easily outweigh the compliance costs.

Under the proposed law, employers must make themselves of the requirement, and it is therefore advisable to have policies in place before incidents arise. Wheeler suggests that the requirement is not onerous.

“The policy can be as simple as a poster at the workplace stating that harassment and violence at work will not be tolerated and that there are venues available for victims to voice their grief,” says Wheeler. “For example, where there is low-level bullying among co-workers in the office, the victim should know where to take their concerns to, and what can be expected as a result of the complaint.”

*1st Sess., 39th Parl. Ontario, 2009

^To learn more about Mr. Wheeler’s practice, please visit his website and blog at http://www.glennwheeler.ca

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Legalese Dictionary: E. & O.E.

Posted in: "All, Business Development, Legalese Dictionary by Admin | No Comments Tuesday, November 24, 2009

E.&O.E., or “Errors and Omissions Excepted,” is a bit of trade jargon commonly used in financial service industries. It means that the author cannot be held liable for errors and omissions (if any) shown on the statement.

For example, when you wish to discharge a mortgage, the mortgagee bank will fax you a statement showing clearly  how much is owed on the property as of the closing date. Because these tasks are generally handled by clerks who in turn rely on computer print out, by indicating “E.&O.E.” the bank disclaims any mistakes the clerk or the computer may have made.

Legally speaking, however, the E.&O.E. disclaimer is far from absolute. While it may offer the company a right to hire a lawyer to disclaim liability, whether the disclaimer actually holds weight in front of a judge or not is an entirely different matter.

read more…

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Black Friday Special: What to Buy for…

Posted in: "All, Business Development, Just for Laughs by Admin | No Comments Saturday, November 21, 2009

Friday, November 27, 2009, is Black Friday, the unofficial day when the holiday shopping season starts.

To mark this occasion and to assist you with making your purchasing decisions, my good friend Grace and I have come up with a holiday gifting guide, which I’ll share with you below:

Mom

G: discount cardigan

P: Weight Loss for Busy Women

Assistant

G: Picture of myself

P: Framed picture of myself

Bookkeeper

G: Whit-Out

P: Red Bull

Ex-Spouse

G: Dandruff in a baggie

P: Gift basket received from last year

Receptionist

G: A promotion

P: A promotion to senior receptionist

Best Female Colleague:

G: Shaving lotion

P: Bubble bath kit

Best Male Colleague

G: Shaving lotion

P: Booze

Process Server

G: Mace

P: Mace

IT Person

G: Set of pliers

P: Fire extinguisher

Favourite Barista

G: Business card

P: Hand Sanitizer

A Brief Note on the Disability Tax Credit – and How to Get It

Posted in: "All, "Brief Note" Series, Administrative Law by Admin | No Comments Friday, November 20, 2009

The Disability Tax Credit is a non-refundable income tax credit under the Income Tax Act.*

The tax credit is administered by the Canada Revenue Agency (CRA) and is not affiliated with other federal or provincial programs, such as the Ontario Disability Support Program (ODSP) or the Canada Pension Plan (CPP). Therefore, receiving disability benefits from any other program doesn’t necessarily mean you are will receive the disability tax credit.

A taxpayer is eligible for the disability tax credit only if a qualified practitioner certifies that he or she has a severe and prolonged impairment, subject to the CRA’s approval. Although the CRA defines disability similarly to other benefit programs, such as the CPP, the threshold is not as stringent.

If you’re given the disability tax credit, you become eligible for the Registered Disability Savings Program (RDSP). (For more details, see my prior post “A Brief Note on the Registered Disability Savings Program.”)

To apply for the disability tax credit, you need to submit a completed Form T2201, Disability Tax Credit Certificate. You can obtain a copy of the form from the CRA website. Applicants must first complete Part A of the form, and bring the form to a qualified practitioner (usually the family doctor) to have Part B completed. The completed application may be submitted at any time during the year. The CRA will review the application before your annual return is assessed.

read more…

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Tech Review: Amazon’s Kindle e-Book Reader

Posted in: "All, Business Development, Product Review by Admin | 1 Comment Friday, November 20, 2009

Disclaimer: This article is provided for information, review, and educational purposes. The author does not necessarily endorse the product discussed. All trademarks belong to their respective owners. Graphic courtesy of Amazon.com, all rights reserved.

On November 17, 2009, Amazon.com announced that their popular electronic reading device became available for shipping to Canada. Two days later, I managed to get one delivered to my door. Today I’d like to share what I think about it.

There are currently two models on the market: Kindle (Global Edition) and Kindle DL. The Kindle DL comes with the bigger 9″ screen, but is not available to residents outside of U.S. Mine is hence the Global Edition, although I’d have preferred the DL for the bigger display.

The device was apparently designed to impress readers with the feel of a real book. The size of the device is just slightly bigger than a trade paperback. Unfortunately, about 20% of the front is taken up by the input interface, leaving a display area slightly smaller than a typical trade paperback.

The display is not the LED panel that I had expected. Rather, it’s a different kind of technology called “electronic ink,” which is meant to have the same attributes as the regular ink, i.e., the display remains without drawing power. Because of this unique attribute not found in other digital devices, the battery lasts much longer – upto two weeks.

The contents stored within the device are entirely searchable. While the device reopens to the last-viewed page, you can also set your own bookmarks, take “clippings,” mark highlights, and record notes. There is also a built-in dictionary for those difficult vocabulary items; simply point the cursor to the word, the definition shows up automatically.

The feature that really sets the Kindle apart from its competitors, however, is its wireless connectivity. You can download an entire book in less than one minute through Whispernet, the built-in wireless network. No computer is required to browse or download contents from the Kindle store. This is a great bonus for frequent travellers as finding hotspots for internet connection can be tricky.

In Canada the price of the contents available for purchases generally includes the delivery via Whispernet. No additional contracts or agreements is required with the wireless carrier for the basic download. However, if you wish to email documents to your Kindle or to browse the net on your Kindle, it will cost you some money.

Kindle, while not a replacement for actual books, is a great leap toward a paperless world. Although I believe that the interface can be further enhanced, I’ll have no regret whatsoever about not lugging my favourite paperbacks around the world and back.

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A Brief Note on Terminating Child Support

Posted in: "All, "Brief Note" Series, Family Law by Admin | No Comments Tuesday, November 17, 2009

In Ontario the majority of child support payments are enforced by the Family Responsibility Office (FRO) if the payments are made pursuant to a court order or a registered domestic contact, unless the parties have withdrawn their file from the FRO.

The support obligation in Ontario, unlike other jurisdictions, is not automatically extinguished under the law when the child turns 18.

There are two ways to cease the enforcement of child support. If both the payor and the recipient agree that the support should be terminated, they can file their consent with the FRO and the FRO will close the file accordingly.

If the parties can’t agree whether the support obligation should end, there’s nothing the FRO can do. Instead, the support payor must bring a motion to change before the court that granted the child support payments in the first place.*

It’s perhaps a good idea to discuss the proposed termination with the recipient to find out whether a consent order to terminate child support could be a possibility. If so, the support payments may be terminated without the parties’ attending the court by way of a consent motion. If not, the support payor will have to ask the court to change or terminate the support.

*Family Law Rules O. Reg. 114/99, R. 15

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The Ontario Disability Support Program (ODSP) and the Canada Pension Plan: A Comparison

Posted in: "All, Administrative Law, Business Development, Legalese Dictionary by Admin | 1 Comment Monday, November 16, 2009

I recently received a few inquiries regarding the difference between the Ontario Disability Support Program (ODSP)* and the Canada Pension Plan (CPP).^ Below is a brief comparison for your reference. Please be reminded that it’s not meant to be an exhaustive list.

Similarities between ODSP and CPP Disability Benefits

Substantive

  • Both the ODSP and the CPP are designed to assist persons with long-term disabilities.
  • Both programs contain cancellation clauses under which the benefits may be cancelled if the applicant has ceased to be disabled.
  • Both programs contains reinstatement clauses for those who have been cancelled and  have subsequently become disabled again.
  • The Courts have held that interpretation of the legislative requirements demands a liberal reading, and any ambiguity thereof should resolve in the applicant’s favour.

Procedural

  • Both are primarily decided by the administrator of the program.
  • Most decisions made by the administrator may be appealed to independent tribunals. ODSP decisions may be appealed to the Social Benefits Tribunal , CPP decisions to the Office of the Commissioner of Review Tribunal.
  • An Internal review or a reconsideration request is required before the decisions can be appealed to the tribunals.
  • The hearings conducted by the tribunals are relatively informal.
  • The hearings are private and confidential, i.e., not open to the public.
  • The rules of evidence, such as medical documents, are relaxed, as long as procedural fairness is observed.
  • Members of the tribunals travel to conduct hearings in locations that are convenient for the appellants.

Differences between ODSP and CPP Disability Benefits

Substantive

  • The ODSP is an Ontario program, while the CPP is a federal one.
  • The ODSP is funded by the Province of Ontario, while the CPP is largely funded by the participants’ contributions.
  • The ODSP is open to Ontario residents who meet the prescribed requirements, while the CPP is only open to those who have made the required contribution prior to the claim.
  • The amount payable is calculated largely according to the benefit unit’s budget requirement, while the CPP is calculated according to the level of past contribution.
  • ODSP appellants may seek interim assistance before the decision is rendered by the tribunal, while  CPP appellants may not.
  • The legislative definition of “person with disability” differs under the ODSP and the CPP.

Procedural

  • The ODSP appellant may appeal the decision of the Social Benefits Tribunal to the Ontario Superior Court.
  • The CPP appellant may appeal the decision of the Office of the Commissioner of Review Tribunal to the Pension Review Board, and subsequently to the Federal Court.
  • The CPP contains provisions allowing persons directly affected by the decision to take part at the tribunal as a party, while the ODSP doesn’t have such provisions.
  • ODSP appellants have the right to appeal to the Ontario Superior Court on a question of law, while leave (permission) is required for CPP appellants to appeal to the Pension Review Board.
  • The Social Benefits Tribunal is entitled to be represented at the Ontario Superior Court on further appeals, while the Office of the Commissioner of Review Tribunal does not have the right to participate on further appeals.

* Ontario Disability Support Program Act, S.O. 1997, c. 25, Sch. B

^ Canada Pension Plan, R.S.C. 1985, c. C-8

Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.

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A Brief Note on the Canadian Pension Plan (CPP) Disability Benefits

Posted in: "All, "Brief Note" Series, Administrative Law, Business Development, Legalese Dictionary by Admin | No Comments Monday, November 16, 2009

The Canadian Pension Plan provides disability pension benefits to persons with disabilities. To become eligible to the benefits, a claimant must meet the financial contribution threshold during the years prior to the claim.

The tests for the CPP disability benefits as set out under the legislation* are as follows:

a person shall be considered to be disabled only if he is determined to have a severe and prolonged mental or physical disability, where

(i) a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and

(ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death

Most applicants to the CPP disability benefits meet the legislative requirement of having prolonged disabilities. The contention, however, mostly rests on the determination of whether the disability is severe enough to warrant the granting of benefits.

The Federal Court of Appeal ruled in the case Villani v. Canada (A.G.)^ the individual words of “regularly” and “substantially” must be given due emphasis when applying the legislative requirement.

For example, the word “regularly” means “at interval or times” and not “at all times,” while the word “substantial” encompasses “actually existing, not illusory, of real importance or value, practical” and not “completely.”

In addition to the considerations above, the Court commented as follows:#

What the statutory test for severity does require, however, is an air of reality in assessing whether an applicant is incapable regularly of pursuing any substantially gainful occupation.  Naturally, decision-makers already adopt a certain measure of practicality in their severity determinations.  As an obvious example, the scope of substantially gainful occupations suitable for a middle-aged applicant with an elementary school education and limited English or French language skills would not normally include work as an engineer or doctor.

In summary, the legislative test must not be applied in a vacuum. Rather, the particular circumstances of the applicant must be taken into account. If the applicant satisfies the decision maker that he or she cannot largely pursue gainful employment, he or she ought to be granted with the benefits.

* Canada Pension Plan, R.S>C. 1985, c. C-8, s. 42(2)

^ [2001] F.C.A. 248, [2002] 1 F.C. 130 (CanLII)

# Ibid., at para. 46

Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.

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Suing a Foreign Resident

Posted in: "All, Legalese Dictionary by Admin | No Comments Thursday, November 12, 2009

Traditionally in common law, the courts are territorial. That means that the court’s jurisdiction can only reach as far as the sovereign territorial limits. Because jurisdiction is territorial, a state’s law has no binding effect outside its jurisdiction. Consequently, the courts are reluctant to permit proceedings involving defendants residing outside the jurisdiction.

However, with the advancement of technology, international transactions now are seen as matters of routine. In a decision made by the Supreme Court of Canada, the Court held that so long as there’s a real and substantial connection to the legal forum, the court may exercise jurisdiction over the foreign defendant.*

In civil proceedings in Ontario, the court’s permission (“leave”) is still largely required for service of a defendant who resides outside Ontario. However, in many instances the required leave is no longer needed. Below is a partial list of circumstances where leave is not required when suing a foreign resident:^

  • in respect of real or personal property in Ontario
  • in respect of a tort committed in Ontario
  • in respect of damage sustained in Ontario arising from a tort, breach of contract, breach of fiduciary duty or breach of confidence, wherever committed
  • for an injunction ordering a party to do, or refrain from doing, anything in Ontario or affecting real or personal property in Ontario
  • against a person outside Ontario who is a necessary or proper party to a proceeding properly brought against another person served in Ontario
  • against a person ordinarily resident or carrying on business in Ontario

If the case doesn’t fall under one of the exemptions provided by the Rules, one may seek leave from the court to commence a proceeding against a foreign resident.

*Morguard Investment Ltd. v. De savoye, [1990] 3 S.C.R. 1077

^Rules of Civil Procedure, R.R.O. 1990, Reg. 194, R. 17

Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.

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