Wrongful Dismissal

Date: 06 Mar, 2014| Author: Fred Streiman

Your termination of employment may be justified if the employee’s behaviour includes verbal threats of violence or physical misdeeds.

In June 2010, the Ontario government changed Ontario’s Occupational Health and Safety Act. These amendments, which are described as Bill 168, place upon the employer a positive duty to deal with workplace violence and harassment. In a recent arbitrator’s award arising from a union grievance procedure, the arbitrator upheld the dismissal of a problematic employee who had over the years displayed anger management problems. There was no history of physical violence, but threats and intimidating behaviour were repeated. The employee who had twenty-eight years of seniority, was terminated by the City of Kingston after a heated discussion with a co-worker and the employee’s union president about the very issue of the employee’s return to work. The employee, who clearly had no control over her behaviour, eventually ended the argument with the union president by making an oblique death threat. The threat was reported to the City’s management team, who investigated. The City came to the conclusion that there was no choice but to terminate the employee who grieved the termination.

The arbitrator concluded that, the Bill 168 amendments to the Occupation Health and Safety Act have changed the law of the workplace in a significant way. It appears that the law of wrongful dismissal has been amended, though it must be interpreted on the facts of each individual case. Termination is not an automatic knee jerk response to every example of violence or threat, but it is to be strongly taken into account in the determination as to whether or not the dismissal is with cause.

The formula that the arbitrator produced and which will be followed closely in wrongful dismissal actions is, to what extent is it likely that this employee if returned to the workplace, can be relied upon to conduct himself or herself in a way that is safe for others? If the employer cannot reasonably fulfil its obligation to provide a safe workplace under the law, the employer’s justification in terminating the loose canon of an employee will be justified.

Dale Streiman Law LLP regularly provides advice to both employers and employees in a non-union environment on wrongful dismissal matters.

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

What is The Common Law and how is that different from other parts of the world

Date: 06 Mar, 2014| Author: Fred Streiman

All of Canada, (with the exception of Quebec, which maintains a civil law system) is a common law jurisdiction. The common law is a legacy of the British empire. Spread across the world all of those formerly pink coloured former members of the British empire, continue to maintain a common law system of justice. The United States, with the exception of Louisiana is a common law jurisdiction.

The main feature of a common law judicial system is that it is a body of law at least partially derived from judge made decisions rather than solely from statutes or constitutions.In common law jurisdictions, it is not unusual to see contracts, wills, and other agreements from widely separated parts of the world bear remarkable similarities. I have seen wills drafted in India, South Africa, parts of the Caribbean and all over the United States, bear many resemblances to a Will drafted in Ontario, despite the fact that the laws of wills and estates are provincially distinct.

One of the primary characteristics of the common law is that statutes and laws are passed by the legislature, however, they are relatively general in their provision. It is for judges to interpret these laws to expand upon them and at times, to create them.The common law has long historical roots. Torts, which are a civil action for a wrong, are not a closed set. The courts from time to time create brand new areas of civil wrong which can be sued upon. The most recent in Ontario in 2012 was the tort of intrusion upon seclusion, also commonly known as the invasion of privacy.

Civil law, primarily a derivative of the Napoleonic code, attempts to avoid the lack of clarity and predictability of the common law. The civil law attempts to produce a code which is all encompassing and specific. It is an attempt to create a detailed code in which the answer is available by reading that code rather than seeking a judge’s interpretation.The common law conversely is rooted in judicial history. Previous judge’s decisions are interpreted and followed. The principle of the case is absorbed into the common law. A prime example of common law is that of negligence and the standards of conduct by which persons, companies and indeed even governments are to conduct themselves. When ones conduct crosses the civil line of appropriate and safe behavior and acts in a negligent fashion, this creates a tort which in turn is the basis for a civil law suit. Almost all of these rules are judge made. They remain until trumped by a higher court or the legislature passes a specific law to amend it. An example is the Ontario Occupier’s Liability Act in which the government clarified various rules and set standards. In turn, the Occupier’s Liability Act, contains many general provisions. Those general provisions are interpreted by judges and create new judge made laws which are followed and evolve.

This long winded explanation of the differences between common law and civil law, while legally highly entertaining, is to a degree, one of the reasons why lawyers often cannot give absolute predictions as to how a case will be decided at a particular point in time. The decisions are driven by both the facts and the court’s interpretation of those facts and the law. The law is made both by the Government and Judges. Cases are recorded and are now far more readily accessible in various computer databases. I can assure you that there are few exercises more frustrating then attempting to find an earlier decided case, which contains the very same fact situation as the one presented by your client. One of the most troubling of all such circumstances is when a set of facts that the lawyer is absolutely certain is as common as hot dogs at a baseball game, has never had a recorded case directly on point. It is the lawyer’s task and a reflection of their ability to draw similarities from non similar cases and to use their powers of persuasion to convince a court as to why their client should be successful.


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:

[list type=”decimal”]

  • 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.


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.


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


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.