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March 30th, 2009
A Last Will and Testament ensures that your estate, including your home, is administered in accordance with your wishes and that adequate provisions are made for dependants and loved ones. It also allows you to select the Executor who will administer your estate. In Ontario, dying without executing a properly drafted will prevents you from having any control over who should administer your estate or care for your children while they are underage. Furthermore, as a will can minimize taxes and probate fees, your estate may incur additional costs without one.
Why is a Power of Attorney Important?
There are two types of Powers of Attorney: A Power of Attorney for Personal Care and a Power of Attorney for Property.
A Power of Attorney for Personal Care allows you to designate someone who will make decsions on your behalf with respect to your medical treatment and overall personal care if you are not mentally capable of making those decisions yourself. A Power of Attorney for Property is similar to one for personal care, only it deals with decisions involving your real and/or personal property, as well as the financial management of your assets.
In Ontario, if you become mentally incapable and have not completed a Power of Attorney, the Office of the Public Guardian and Trustee of Ontario will generally designate on your behalf your closest relative to make your decisions for you, whether or not that person would have been who you wanted.
Mike Stavrakis
Barister & Solicitor, Notary Public
50 Gervais Drive, Suite 505
Toronto, ON
M3C 1Z3
T: 416-446-0340
F: 416-441-0811
Tags: will Ontario
Posted in Family Law | No Comments »
March 6th, 2009
An employee was dismissed after missing 960 days of work over 7 ½ years and unlikely to “work on a regular and continuous basis.” The Supreme Court of Canada found that “[i]f the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future, even though the employer has tried to accommodate him or her, the employer will have satisfied the test”.
Common Law Mitigation: Evans v. Teamsters Local Union No. 31, 2008 SCC 20 (“Evans”)
Four months after termination, an employee was asked to return to work to serve out the balance of 24 months’ notice. The Supreme Court of Canada ruled that when an employer ends an employment relationship without notice, the employee has to act reasonably and may in some circumstances, have to return to the employer to mitigate his damages as long as there are no material changes in the terms of employment.
Wallace Damages: Honda Canada v. Keays, 2008 SCC 39 (“Keays”)
The Supreme Court of Canada changed the law as it pertains to “Wallace damages” and made it far more difficult for employees to claim bad faith damages for the manner of dismissal. Honda terminated a 14 year employee who suffered from chronic fatigue syndrome after he refused to meet with an occupational medical specialist to determine his medical condition regarding accommodation. The Supreme Court of Canada noted that aggravated damages will only be awarded where employees have proven that they have suffered actual compensable mental distress from the bad faith behaviour of the employer in the dismissal process. This is not to be done by a mere extension of the notice period.
Soma Ray-Ellis is a Partner and Head of the Employment and Privacy Group at Paterson, MacDougall LLP. She is also author of Halsburys Laws of Canada – Discrimination and Human Rights.
Human Rights: Hydro-Quebec v. Syndicat des employé-e-s de techniques profesionelles et de bureau d’Hydro-Québec, section locale 2000, 2008 (SCFP-FTQ) SCC 43
Tags: Employment Law
Posted in Employment Law | No Comments »
February 14th, 2009
Toronto DUI Level Change
During the 1990s, charges of DUI, or impaired driving, in Toronto decreased. Some groups, such as Toronto MADD, believe this change was because of increased education among teenagers about the dangers of driving impaired by either alcohol or drugs. As the millennium dawned, however, the rates of drunken driving began to increase in Toronto. For that reason, officials and activists in Toronto believed the city needed some changes to their DUI/impaired driving laws.
Official Level for Impaired Driving
The official level for someone to be considered drunk legally is .08. The standard until about a decade ago in Canada and the United States was .1 as the legal limit. After viewing research, political leaders in many areas realized that lowering the legal limit to .08 would cut down significantly on the numbers of people killed in drunk driving accidents. Indeed, Toronto MADD argues that up to 40 percent of vehicular fatalities involve alcohol or drugs on some level.
In Toronto, if someone blows a .08 on a breath exam, that person automatically can be charged with impaired driving. There are other ways for someone to be charged with being intoxicated or high while driving, which many people don’t know. In fact, the law in Toronto allows for someone to be charged with DUI when that person is at .04 or higher.
Lowered Levels Still May Be Intoxication
The burden of proof falls onto the police officer for people who breathe .04 to .079. The officer must use other methods to show that the person being pulled over is impaired despite that person’s blood alcohol level (BAL) being below the legal limit. This impairment must challenge the person’s ability to drive a car. Police officers may see this difference first because of swerving while driving, and then the officer may find the person cannot walk straight or perform simple recitation. In this case, the officer has the right to arrest the driver for impaired driving despite not hitting the .08 BAL.
Punishment for Lower Level Impaired Driving
For people who land just above the legal limit in Toronto for impaired driving, the first line of police action is to suspend the license for a 12-hour period. Twenty-four hour license suspensions also are possible. During this time, the accused must have someone come to get him or her or the person must stay in police custody.
These punishments come before more long-term actions, such as suspending the license for a longer period of time or the levying of fines. These punishments typically are for repeat offenders. Though the legal community in Toronto has taken some steps to curb drunk driving, such as the lowering of the legal limit to .08, some activists argue that these limits and punishments should be made even tougher. Whether that happens will depend in large part on whether the rate of accidents from drunken driving decrease from lowered limits and more police discretion. Determining the best place to put the legal limit for such issues often requires some trial and error to get the best results.
Tags: DUI lawyer
Posted in DUI lawyer | No Comments »
January 22nd, 2009
As of January 1, 2009, new advertising requirements must be met by agencies or families who seek to hire a foreign live-in Caregiver to work in Canada.
The HRSDC has eliminated all Occupation Under Pressure lists previously utilized by employers to facilitate the temporary entry of foreign workers into Canada. Prior to this date, employers seeking to hire foreign workers whose occupations were listed as being “in demand”, benefited from minimal or no advertising requirements for the provision of an HRSDC approval. Following January 1, 2009, advertising for foreign national employees that would have fallen into this beneficial exception has become mandatory and significantly more involved. This change significantly impacts families seeking live-in Caregivers and live-in Caregiver agencies across Canada.
Minimum Recruitment Requirements
For Canadian families in need of a live-in Caregiver in Canada, these changes mean significantly greater requirements. Service Canada now requires that the following minimum recruitment requirements be met before it will approve an application for a Labor Market Opinion for Live-in Caregivers:
• Advertise on the national Job Bank for a minimum of fourteen (14) calendar days; and
• Conduct similar recruitment activities consistent with the practice within the occupation in the three (3) months prior to applying for a LMO; and
• Demonstrate reasonable ongoing recruitment efforts which include advertising directly to communities that traditionally face barriers to employment.
As families seeking to employ live-in Caregivers are often subjected to time constraints, these recent changes, which add a minimum of three (3) months to the application process, are of significant importance. The Bomza Law Groups provides legal advice and assistance to families, live-in caregiver agencies and associations. We invite you to contact us to secure further information regarding your live-in Caregiver and other immigration needs.
This document has been created for informational purposes only and does not contain a full analysis of the law, nor does it constitute a legal opinion of the Bomza Law Group.
For further information regarding this update or any other Canadian immigration matter, please contact the Bomza Law Group at 416-598-8849 or e-mail one of the following professionals:
Veronica G. Zanfir, vzanfir@bomzalawgroup.com
Tags: Care givers
Posted in Immigration | 2 Comments »
January 9th, 2009
Basement Area
If you describe the leased premises by its municipal address only, is the basement area which was intended to form part of the leased premises automatically included as part of the tenant’s leased premises? It depends! Why? If the basement area is considered ‘necessary” to the enjoyment of the leased premises, it is included, however, if the basement area is merely considered “convenient”, it is not. Avoid ambiguity by specifically providing that the basement area does not or does not form part of the leased premises.
Extension Rent
If you are acting for a landlord and give a tenant an extension option in which the annual rent during each such extension period is to be either mutually agreed upon, or failing agreement, determined by arbitration under the relevant arbitration act, always provide that the annual rent during the extension period will not be lower than the annual rent during the last year of the initial term. Why? Because you want to make sure that the landlord’s annual rent during the extension is not lower than the annual rent during the last year of the initial term of the lease. Otherwise, if the parties can’t agree on an extension rent, and it has to go to arbitration, then without this wording, the extension rent could possibly end up lower than the rent during the last year of the initial term.
Roof Replacement
Is a roof replacement a capital expenditure or is it a repair expense?
A landlord should be aware that if the roof of the shopping centre is replaced with the same quality roof, then the landlord can write off the replacement costs in that year, but if the landlord substantially improves the quality of the value of the roof, it must depreciate the cost over a period of years.
Rent
A landlord should make sure that the term “rent” is defined in its shopping centre lease to mean all minimum rent, percentage rent and additional rent payable pursuant to the lease, because in the event of a default by the tenant, then the landlord has the right to exercise its claim against the “rent” under the lease.
Distress
A landlord should be aware that, unless the lease provides for notice, the landlord has the right in the event of a default by the tenant for the payment of rent, to distrain (i.e. seize) the tenant’s goods, chattels and inventory for the outstanding rent, without notice to the tenant.
Written by:
HARVEY M. HABER, Q.C., LSM, DSA, B.A., LL.B, C.MED
Senior Partner, Goldman Sloan Nash & Haber LLP
Barristers & Solicitors,
480 University Avenue, Suite 1600
Toronto, Ontario M5G 1V6
Tel: 416-597-3392 Fax: 416-597-3370
Posted in Uncategorized | No Comments »
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