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Category: Civil Litigation

THE NEW TORT OF INVASION FOR PRIVACY

Date: 06 Mar, 2014| Author: Fred Streiman

The Ontario Court of Appeal in 2012 in the case of Jones v Tsige, has created a new cause of action or a basis for suing someone. The exotic title of this is called intrusion upon seclusion. The technical components of this new basis for suing someone civilly is:

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  • An intentional or reckless conduct on the part of the Defendant.
  • An invasion of the Plaintiffs private affairs without lawful justification, and
  • An invasion that a reasonable person would regard as highly offensive and that causes the Plaintiff distress, humiliation or anguish.

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While this case is of great interest to experts in privacy law, it potentially has large ramifications for family law.The facts in Jones v. Tsige are based in a family law environment. Jones, was a customer at the Bank of Montreal. Ms. Tsige, worked at the Bank of Montreal and had a dispute with her common law spouse who had earlier been married to the Plaintiff, Ms. Jones. Tsige, rather than learning from her common law spouse how much support he was paying, without authorization, accessed Ms. Jones banking records. The bank became involved, and disciplined Ms. Tsige who apologized.

This fact situation has lead to the birth of a new basis upon which to sue someone, namely an intrusion upon seclusion, also known as the new tort for invasion of privacy.It is extremely common in family law circumstances, for a spouse to go rooting around in the private papers of the other, when a marriage comes crashing to an end. A relationship based upon absolute trust, quickly changes into one of absolute distrust and disbelief. Emails are intercepted, private records and letters are opened, all in an effort to discover evidence or to gain a factual upper hand. Lawyers must be careful in what they advise their clients as to what they can do and whether or not their advice may leave their clients or relatives open to an additional law suit for damages arising from an intrusion upon the other spouses seclusion. It will be interesting to see how this area of law evolves.

The Court of Appeal set some limits to ensure we realize that we are not in Kansas or the wild west of the other 49 United States. The court set an upper range of damages at $20,000.00 and in the Jones v Tsige case, it awarded damages of $10,000.00 and no costs. It would be prudent for lawyers, in the appropriate circumstances to add additional grounds of damages of intrusion upon seclusion. Another example of that is for intentional infliction of mental distress or assaults at the hands of the other spouse. For more information, please fee free to contact the family law group at Dale, Streiman Law LLP.

WRONGFUL DISMISSAL EVEN IF FIRED, YOU HAVE AN OBLIGATION TO LOOK FOR A JOB DUTY TO MITIGATE

Date: 06 Mar, 2014| Author: Fred Streiman

The right of an employee to sue an employer who has wrongfully fired or terminated them, is really a subset of contract law.Within that area of contract law is the common issue of mitigation of damages.

Simply put, just because you have suffered a loss because another party has broken their contract with you, you must still make efforts to attempt to reduce those losses. Commonly referred to as mitigation of damages, the simplest example of that in wrongful dismissal is a fired employee must make an effort to find another job.Even if one is terminated unfairly, if you find a replacement job that earns you the same salary or greater, may potentially have no damages and no cause of action whatsoever. This is a gross oversimplification that ignores complicating factors such as damages under the human rights code and properly calculating the damages that one has suffered.

To repeat, if you are wrongfully fired, you need to make a genuine effort to find a replacement job and must be able to prove it.In some cases, the entire issue of what will occur if your employer terminates you is governed by an employment contract. Most employment contracts set out specifically what the fired employee will receive if they are fired without justification.In the recent and interesting 2012 Ontario Court of Appeal decision of Bowes v. Goss Power Products Ltd., the court strictly upheld the employment contract despite the fact that the employee’s damages were virtually nothing.

In that case, the parties had signed an employment contract requiring the employee would receive six months salary if he was terminated without justification. The contract said nothing about the obligation of the employee to mitigate his damages. The employee found a similar paying job within two weeks and the employer felt that there was accordingly no need to pay anything other than the statutory minimum required under the Employment Standards Act (in this case three weeks pay).

While the employer was initially successful at trial, the Ontario Court of Appeal reversed that decision. The Court of Appeal held that a contract was a contract. If the employer wanted that normal contractual obligation of duty to mitigate to be within it, it should have been inserted.This is not the law in the usual case of an employee who is terminated when there is no contract of employment whatsoever. That obligation to find another job and reduce your damages still exists.

One of the civil litigation lawyers at Dale Streiman Law LLP would be pleased to discuss your employment situation.One should note that employees who are governed by a union contract are subject to an entirely different set of rules which are almost exclusively set out in that union contract.

By: Fred Streiman
Fred-Streiman

PROVINCIAL GOVERNMENT SHORT SIGHTED IN ITS STAFFING SHORTAGES AND FAILURE TO PAY AS YOU GO

Date: 06 Mar, 2014| Author: Fred Streiman

As any individual who has had the misfortune of attempting to file any document with the courts in Brampton or the surrounding areas, you will have learned the moto, bring a book.

The registrar or clerks office of the Region of Peel courthouse are chronically understaffed and overworked. A speed bump system of lengthy lines, which features limited number of filings, have all been incorporated in an attempt to throttle the inflow of documents in an attempt to gain a closer relationship between the available staff and the documents that are to be filed.

This blog is in no way meant to be a criticism of the court staff, but rather of the short sighted failure of the government, who are of course our representatives in their management of our tax dollars.There are substantial court fees to be garnered by the filing of the documents. As an example a motion for a divorce Order requires a fee of $280.00.

There should be careful consideration of the concept of determining what is the true cost of the filing, managing and retrieval of such documents and setting a fee that covers those costs. As such, this would be a revenue neutral process. The provincial government rakes in annually many millions of dollars in filing fees. While the government attributes these to their general fund, the government in this author’s humble view needs to look upon all of its functions where possible on a much more business like approach. There are already provisions for those individuals that cannot afford the appropriate fees to have them reduced or eliminated in particular circumstances. That is an admirable place for our tax dollars to be spent. However, it should be part of any litigant’s legal fees to pay an appropriate amount of money for the something as mundane as the filing of documents.

As a society, we underwrite the enormous costs of the judiciary and its many supporting arms. This is as it should be as the administration and rule of law is what separates Canada from oppressive autocratic and often dangerous governments. Layoffs make no sense as a cost cutting measure. The government is cutting off its nose to spite the economy’s face. A well run judicial system, which includes something as simple as the filing of a court document in less than an hour should be a feature of a modern society. The countless hours wasted while waiting in line, is a drag upon the economy, one which all of us pay for and benefits no one except perhaps the publishers of newspapers, books and crossword puzzles to occupy the waiter’s time.

Summary Judgment Motions in civil matters

Date: 06 Mar, 2014| Author: Fred Streiman

The government and the courts have been striving with limited success to reduce legal fees and to shorten the court process.

There has been available for a long time, the ability of a litigant* to bring a motion for summary judgment. It gives any party to a civil litigation action, the opportunity to ask the court before trial, to make a final decision on all or part of a law suit. As an example, a frivilous lawsuit brought with no foundation could be successfully defended at an early stage by bringing a motion for summary judgment seeking to have the Plaintiffs case dismissed. Alternatively, a Plaintiff who has a rock solid case, such as the collection of debt to which only a paper thin defence filed solely to delay matters has been filed. In those circumstances, a party can ask the court in the context of a motion for summary judgment, to grant a Judgment on a motion (almost always based solely upon written material and argument by lawyers), rather than at trial.

Recently, Rule 20 of the Rules of Civil Procedure was dramatically changed and the Ontario Court of Appeal recently released its decision in five cases heard simultaneously. All of these cases dealt with the court’s interpretation of the new Rule 20. The test that the court imposed as to whether or not a motion for summary judgment should be granted, turned upon the phrase, the full appreciation test, expanded by the court asking, can the full appreciation of the evidence and issues as required to make dispositive findings be achieved by way of summary judgment or can this full appreciation only be achieved by way of summary judgment or can this full appreciation only be achieved by way of a trial?

To clarify a not particularly clear direction, would the motion judge be satisfied that there is no need for this matter to proceed onto trial, that the judge feels that he or she has all of the facts and a solid understanding of a case that does not require the time and expense of a trial.While summary judgment motions have existed for a long time, the recent rule change and the Court of Appeal’s decision, generally referred to as Combined Air Mechanical Services Inc. v. Flesch, represents a fresh page in this evolving area of law.

Dale Streiman Law LLP has appeared numerous times, both prosecuting and defending motions for summary judgment

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