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Archive for ‘Practice of Law’

Should Law Society Fees Be Progressive?

Recently lawyer Elsa Ascencio @elsaasce tweeted about the Law Society fee structure. In her initial tweet she pointed out that the fees prevent her from servicing her clients.

In response, many lawyers chimed in. Jessica Prince @jesshwprince tweeted that the barristers in England and Wales have a progressive fee structure based on last year’s earnings. Lawyer Rob Kittredge @RobKittredge pointed out that the annual fees in some American states range from around $100 to $535. “Illinios: $99. Minnesota: $114-$250. NY $60-$275. California: $535. Florida: $265. Colorado: $325.”

Elsa has started a petition to change the fee structure. To learn more: . . . [more]

Posted in: Practice of Law

Saving Clauses Do Not Permit Employers to Contract Out of the ESA

Written by Lewis Waring, Paralegal, Editor, First Reference Inc.

In Groves v UTS Consultants Inc, 2019 ONSC 5605 (“Groves”), the Ontario Superior Court of Justice (“SCJ”) held that an employer cannot contract out of its obligations under the Employment Standards Act, 2000 (“ESA”) by including a “saving clause” in its employment contract. Moreover, a contract that attempts to make an employer exempt from its obligations under the ESA is unenforceable, and, in Groves, the SCJ merely applied this uncontroversial principle to what is known as a saving clause. . . . [more]

Posted in: Case Comment, Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions, Substantive Law: Legislation

Introducing the Precedent Innovation Awards

Lawyers love awards. So much so that they have become in some quarters such a questionable marketing practice that the Law Society of Ontario has special commentary for them under the Rules of Professional Conduct,

4.2-1 A lawyer may market legal services only if the marketing

(a) is demonstrably true, accurate and verifiable;

(b) is neither misleading, confusing, or deceptive, nor likely to mislead, confuse or deceive; and

(c) is in the best interests of the public and is consistent with a high standard of professionalism.

[3] Examples of marketing that do contravene this rule include…

(e) referring

. . . [more]
Posted in: Practice of Law: Marketing

The Meaning of Justice in Family Law Disputes

Justice is a complicated concept. The dictionary definition is short enough, typically given as “fairness and moral conduct,” but the seductive simplicity of the explanation ignores the important analyses offered by major thinkers from Plato through Hobbes, Rousseau and Mill to Rawls, and tends to stop at the doorstep of the courthouse in any event.

A few weeks ago, I was asked to speak at an ADRIC conference on justice in family law disputes and the difference, if any, between “justice” in the context of litigation and “justice” in the context of mediation. It was an intriguing question . . . [more]

Posted in: Justice Issues, Practice of Law

Injured at Work: Tribunal Clarifies the Limits

Written by Daniel Standing LL.B., Editor at First Reference Inc.

In a recent “right to sue application,” Decision No. 550/19, the Ontario Workplace Safety and Insurance Appeals Tribunal considered whether a truck driver who sustained an injury at the workplace a short time after his work assignment ended was entitled to sue the employer. In reaching its conclusion that the right to sue was taken away by legislation, the Tribunal made key findings on the issues of whether the truck driver was a worker or an independent contractor and whether the injury was sustained in the course of the . . . [more]

Posted in: Case Comment, Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions

The Meritocracy Trap

In “The Meritocracy Trap”, Yale Law Professor Daniel Markovits writes about the history of work and education in modern America. He asserts that Aristocratic dynasties based on land have been overtaken by meritocratic dynasties. The transfer of wealth in meritocratic dynasties has been facilitated through education.

Markovits states that education has become the labour market’s preferred sorting mechanism for class. “Education maps the fault line that separates workers in the newly polarized labour market.”

In the mid-twentieth century many workers were groomed from entry level positions to eventually take on leadership roles. However, nowadays “elite education has displaced continuous workplace . . . [more]

Posted in: Practice of Law

Flexibility to Start or Leave Work Does Not Impact Original Employment Contract

A recent Ontario appellate decision confirms that employer flexibility in granting occasional requests, such as the time to start and end work, does not always modify the original employment contract.

Quick facts

The employee in this case worked as a scheduler from 8:30 a.m. to 4:30 p.m., with earlier morning work on occasion. The employee claimed that she had a verbal agreement with the employer that she was allowed to arrive any time before 10:00 a.m. to allow her to manage her childcare obligations. However, the employer claimed that he had discussed her irregular arrival times with her and told . . . [more]

Posted in: Case Comment, Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions

Procedural Fairness: Listen to the Other Side

Written by Daniel Standing LL.B., First Reference Editor

A recent case of the Saskatchewan Court of Appeal, Saskatchewan (Employment Standards) v North Park Enterprises Inc., 2019 SKCA 69 (CanLII), illustrates the importance of the Latin maxim, audi alteram partem which means “listen to the other side,” or “let the other side be heard as well.” All administrative bodies, including labour boards, must comply with the rules of natural justice and procedural fairness. Within those rules there exists the duty to act fairly, which includes allowing the parties the right to be heard. In this case, the Saskatchewan Labour Relations . . . [more]

Posted in: Case Comment, Justice Issues, Practice of Law, Substantive Law, Substantive Law: Judicial Decisions

Can a Relationship With a Subordinate Be Cause for Dismissal?

The New Brunswick Court of Queen’s Bench recently considered if and when a workplace romance could lead to just cause for dismissal.

Quick facts

The employee was a regional manager for New Brunswick and had been employed by the employer since at least 2002. He was dismissed in May 2017 when the employer became aware that the employee was involved in a sexual relationship with another employee whom he supervised and had failed to report the relationship, as required by policy.

Prior to the dismissal, the employer conducted an investigation which confirmed the existence of the relationship. But it also . . . [more]

Posted in: Case Comment, Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions

#LawNeedsWellnessBecause

Recently the #LawNeedsWellnessBecause hashtag was trending on Twitter. Lawyers weighed in on why mental health should be a priority. Amongst the #LawNeedsWellnessBecause tweets, the structure of how lawyers practice was pointed to as a contributor to stress, anxiety, and burnout.

Despite the structural factors influencing mental health, there is almost an exclusive focus on fixing the individual. In the article “How mindfulness privatised a social problem: The £3.4trn industry encourages a preoccupation with the symptoms of mental illness, rather than their social causes,” Hettie O’Brien in the New Statesman discusses this issue.

O’Brien quotes Purser who argues that . . . [more]

Posted in: Practice of Law

Refusing Dangerous Work Is Not Only in the Eye of the Beholder

Written by Daniel Standing LL.B., Editor, First Reference Inc.

Hassan v City of Ottawa (OC Transpo), 2019 OHSTC 8 confirms the principle that an employee’s belief in a work-related threat that is purely subjective and hypothetical will not allow the employee to invoke the exceptional remedy under the Canada Labour Code to refuse to work.

To legitimately refuse to work on this basis, the employee’s perception of danger must also be objectively reasonable. In this case, the employee’s refusal failed to meet that threshold.

Key facts

The employee was a bus driver working for the City of Ottawa (OC . . . [more]

Posted in: Case Comment, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions

Discriminatory Hiring Practices a Blind Spot in the Legal Industry

Written by Lewis Waring, Paralegal, Editor at First Reference

In Moore v Ferro (Estate), 2019 HRTO 526 (CanLII) (“Moore”), a British-trained lawyer licensed to practice in Ontario applied for a position at a law firm and was denied. The applicant responded to his denial by claiming that the law firm had discriminated against him in violation of the Ontario Human Rights Code.

The nature of that discrimination, the applicant claimed, was based upon his race and age and was demonstrated by the firm’s interview procedure, refusal to hire him and the language used in their correspondence with him. . . . [more]

Posted in: Case Comment, Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions