The post Workplace Harassment Goes Virtual During COVID-19 appeared first on GLG LLP Lawyers - Experienced Toronto-Based Lawyers Providing Client Centred Business, Real Estate and Litigation Services.
]]>On the employment side, there has been an interesting, and perhaps unexpected, change in workplace harassment claims. With workplaces across Ontario largely shifting to remote status across the province for the past nine months, one might have expected harassment to decrease significantly since coworkers are not interacting face-to-face like they used to. But in fact, some HR professionals have found that claims have actually increased this year.
A recent article in The Walrus highlighted the fact that many professionals are reporting an increase in workplace harassment claims. These claims continue to stem from interactions happening in the physical workplace for those who are deemed essential and therefore still attending work in person. However, there is also a significant jump in the number of online harassment claims, given that most workplace communication has shifted from the boardroom or office lunchroom to online tools such as Zoom, Slack, and email.
One software developer in the United States noted that the online workplace has become more combative than the previous in-person environment due to a number of factors. Employees are often more overworked than they once were, given our inability to ‘leave’ work behind for the day. Now that many people are operating out of their homes, there is less structure and division each day, and as a result, people are often working more. In addition, a number of companies have been forced to cut back on staff in the past year, requiring those who are still employed to pick up the slack created by those absences.
With more work often being done by fewer people, there is a greater sense of urgency that sometimes results in a lack of proper recognition, as well as a more demanding culture. All of these factors are contributing to increased worker burnout and a more hostile work environment overall. A professor of management at Villanova University said that “[s]imply being drained and stressed or feeling depleted are strong predictors of aggressive behaviour”.
The online environment allows for new channels to bring negativity into the workplace. Zoom and Slack meetings mean coworkers are often texting or messaging one another in side conversations, perhaps expressing negative feelings about colleagues or the workplace overall. This can reduce morale and increase paranoia among staff.
Not only is abusive or harassing behaviour increasing online, the current climate means that many employees may opt not to report the problems their facing. According to Tracy Porteous, executive director of the Ending Violence Association of BC, remote working “increases a worker’s vulnerability to sexual harassment and can decrease the chances of reporting”. While the work from home environment has many benefits, such as cutting the need to commute and saving employees time and expense on travel, food and clothing, employees are also feeling more isolated and vulnerable than ever before.
Experts say that employers should proactively work to address the situation to reduce the negative effects of working remotely on their staff. Actions should include openly encouraging employees to report incidences of abuse, harassment or other aggressive behaviours, and then take those reports seriously. Each claim should be properly investigated and dealt with accordingly. Before the pandemic started, the Ontario and federal governments addressed workplace harassment by creating additional responsibilities for employers to manage these types of situations. In Ontario, the Occupational Health and Saftey Act puts an onus on employers to develop and communicate a comprehensive harassment and violence policy, and follow through on the mandates within.
Contact GLG LLP in downtown Toronto for assistance with any employment litigation matter, including claims relating to harassment or violence in the workplace. The firm’s litigation lawyers represent both employees and employers in a range of employment issues. Call the firm at 416-272-7557 or contact them online to schedule a confidential consultation.
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]]>The post Misrepresentation Prompts Court to Rescind Real Estate Agreement appeared first on GLG LLP Lawyers - Experienced Toronto-Based Lawyers Providing Client Centred Business, Real Estate and Litigation Services.
]]>Misrepresentation refers to an untrue statement made by one party, which in turn induces another party to enter into a contract with them. It is important to remember that misrepresentation is not always intentional. There are three types of misrepresentation recognized by Ontario courts:
The remedy for a finding of misrepresentation can vary depending on the circumstances and the type of misrepresentation. For the first two categories above, a claimant can seek damages, rescission of the contract, or both. For innocent misrepresentation, a court is more likely to award damages rather than recession.
In a recent decision before the Ontario Court of Appeal, a homebuyer had brought a claim seeking recession of an agreement of purchase and sale after discovering a significant discrepancy in the square footage of the home from what had been presented initially. The buyer was relatively young and inexperienced in real estate, and this was the first time he had purchased a property. He was looking for a specific amount of space in order to accommodate himself, along with several members of his family.
His real estate agent showed him a home and told the buyer it was approximately 2100 square feet in size. The real estate had relied upon information provided in a previous listing of the property as well as details provided by the homeowner, however, the agent did not conduct a property measurement exercise. The agent agreed he had been negligent in failing to do this.
The buyer visited the property himself twice and inspected each room. On the second visit, he was accompanied by members of his family as well. He signed an agreement of purchase and sale to purchase the house. However, his financial institution required that he have an appraisal done on the home as a condition of the approval of his mortgage. When the appraisal was completed, the size of the home was assessed at 1450 square feet. Given the significance of the difference, the buyer withdrew from the transaction and brought a claim seeking rescission of the agreement and a return of his $50,000 deposit.
The lower court found in favour of the homebuyer and rejected the argument that the buyer’s personal inspection of the home should have been a better determination of his expectations regarding the size of the home than the representations made. The court took the buyer’s age, inexperience with square footage and first-time homebuyer status into account in determining that it was reasonable he had relied on the representations even after seeing the home himself.
The defendant real estate agent appealed the decision, claiming again that once a buyer has inspected a property, the inspection should displace any representations made regarding the size of the home. The Court of Appeal dismissed the appeal, holding that this argument might apply in some cases, whereas in others, such as the case at hand, the constellation of facts would render this finding unfair. The following facts were at the core of the Court’s decision:
Contact GLG LLP in downtown Toronto for assistance with litigation relating to breach of contract, real estate or other civil disputes. The firm’s real estate and litigation lawyers provide efficient and skilled trial advocacy for a range of legal issues and will look to settle your matter quickly and efficiently. Call the firm at 416-272-7557 or contact them online to schedule a confidential consultation.
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]]>The post Hudson’s Bay Files Lockdown Lawsuit Against Ontario Government appeared first on GLG LLP Lawyers - Experienced Toronto-Based Lawyers Providing Client Centred Business, Real Estate and Litigation Services.
]]>When the government announced new province-wide lockdown measures in late December aimed at curbing the rapid increase in new COVID-19 cases, the protocols once again called for a closure of all non-essential retail stores for a period of one month, from December 26th (typically one of the busiest and most profitable shopping days of the year) to at least January 23rd, 2021. With Ontario continuing to see record infection rates, it’s unclear whether this lockdown period will be extended further, particularly in areas with a high concentration of infection rates throughout the Golden Horseshoe region.
Prior to the provincial order, Toronto and Peel Region had been under these lockdown rules for several weeks already, with non-essential stores, services and malls shuttered since November. In response, a coalition of Ontario retailers, including the Hudson’s Bay Company, wrote a letter to the Ford Government arguing against the measures and saying that the move allows big box stores such as Walmart and Costco to thrive, while smaller businesses were suffering.
In order to meet the criteria to be considered essential, and therefore remain open during the lockdown, a retailer must fit within one or more of the following categories:
These essential businesses are allowed to continue to keep their doors open to the public, even under the province’s most strict lockdown rules. These businesses may continue to sell non-essential products (such as electronics and home decor items) as well as essential products.
When the November and December lockdown measures were announced, HBC filed an application for judicial review of the province’s decision, saying it was unfair and arbitrary and would punish retailers at the most profitable time of year. According to the court filing:
Ontario offered no explanation or justification for this about-face, which excluded HBC while allowing other big-box retailers like Walmart, Costco, and Canadian Tire to remain open and to sell all of their non-essential goods including those sold by HBC and many other closed retailers, large and small.
In a statement, the company said:
On behalf of thousands of large and small retailers in Toronto and Peel, we have been left with no choice but to ask the court to recognize the unfairness of the current situation. The situation is dire and untenable for thousands of retailers, but it’s not too late for the government to make a better decision for Ontario.
On December 23, the Superior Court of Justice issued a decision on HBC’s application, ultimately dismissing it. However, the court did side with the retailer on the issue of big box stores being permitted to sell non-essential items to shoppers in addition to essential items such as groceries. The Court noted that it was required only to determine whether the lockdown policies were consistent with the Reopening Ontario Act, which they were. However, the Court did question whether the policies allowing shoppers to access even non-essential items were consistent with the purposes of the lockdown, pointing out that Quebec had limited the scope of these essential businesses to only the essential items, blocking customers from accessing other areas of the stores.
Our business lawyers can advise on how best to protect your business and maintain staffing through this period of uncertainty. Contact GLG LLP in downtown Toronto for efficient and skilled advice on the management of your business. Call the firm at 416-272-7557 or contact them online to schedule a confidential consultation.
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]]>The post Possible Expansion of Ontario’s Mandatory Mediation Program appeared first on GLG LLP Lawyers - Experienced Toronto-Based Lawyers Providing Client Centred Business, Real Estate and Litigation Services.
]]>The Mandatory Mediation Program was created in 1999 to help reduce the number of cases going to court in regions with high caseloads such as Toronto, Ottawa and Windsor. The program only applies to certain litigation matters, as set out under Rules 24.1 and 75.1 of Ontario’s Rules of Civil Procedure.
Under Rule 24.1, all civil actions (with certain exceptions) in Toronto, Ottawa and Windsor are required to enter mandatory mediation in an attempt to resolve the dispute before going to court. Exceptions include the matters covered under Rule 75.1, as well as family law matters, most construction lien cases, and class actions. Rule 75.1 addresses matters related to estates, trusts and substitute decisions. Per the Rule, these matters will be required to go to mandatory mediation unless there is a court order which states otherwise.
The parties are required to select a qualified mediator. They can choose one from a list of mediators on the Program’s roster, or choose one on their own. If they fail to agree on a mediator, one will be appointed by a Local Mediation Coordinator. The mediation is required to take place within 180 days of the filing of the first defence, however, the parties can agree to consent to a postponement if they choose.
Within 180 days of the filing of the first defence, the Local Mediation Coordinator must receive one of the following documents:
At least 7 days prior to the mediation, the parties must provide the mediator with a copy of the pleadings, a Statement of Issues and all related documentation. If the parties are able to reach an agreement on some or all of the issues, they will enter into a binding settlement agreement. If an agreement is not reached on all of the issues, the parties may proceed to litigation. The hope is then that the mediation will have helped to narrow the issues and focus the parties for litigation.
The Ontario Bar Association recently made a proposal requesting the expansion of the Program across the province. The OBA recognizes that it may not be feasible in every jurisdiction, due to the availability of qualified mediators in a given area. Further, some areas may not be experiencing delays in the courts, and so it may not be as pressing. However, the OBA points to the benefits of mediation in general and proposes that even in areas where it not needed, it could be highly beneficial.
Specifically, the OBA would like to see the Program expanded to the following areas:
The OBA suggests that the expansion roll out as above for now, and suggests that ongoing monitoring will demonstrate a decrease in forum shopping, and a decrease in the length of litigation in those areas. Following that, the provincial government could consider expanding the program to the rest of the province.
The litigators at GLG LLP in downtown Toronto provide efficient and skilled trial advocacy for a range of legal issues and will look to settle your matter quickly and efficiently. Call the firm at 416-272-7557 or contact them online to schedule a confidential consultation.
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]]>The post Employment Contracts Should be Clear When Hiring Employees of new Acquisition appeared first on GLG LLP Lawyers - Experienced Toronto-Based Lawyers Providing Client Centred Business, Real Estate and Litigation Services.
]]>The issue began in 2017 when one business (ASCO) purchased the assets of an existing numbered company (637), a manufacturing business. The employee in question had been working as a braze welder for 637 since 1981. The Agreement of Purchase and Sale for the business included a clause stating that 637 had provided termination notice to all of its employees, as well as appropriate severance pay. The agreement also contained an indemnification clause, absolving ASCO from any liability stemming from a breach of 637’s warranties.
637 gave the employee a Settlement and Release document 2 months prior to the close of the sale, notifying her that the business had been sold, and saying she would be offered continued employment with ASCO. The Release terminated her employment ith 637 as of November 24, 2017, and included termination pay in the amount of $5,900. The Release stated the money “represent[ed] 8 weeks gross compensation in full satisfaction of all claims … including all severance pay, termination pay or other compensation howsoever arising”. The employee signed the Release and accepted payment.
ASCO then offered continued employment to the employee, along with 19 other 637 employees, and she stated it was her understanding that she would be employed as a braze welder, continuing her previous role without interruption and that the employment would be indefinite. She was also under the impression that ASCO would recognize her history of employment with 637. There was no written document setting out the terms of employment with ASCO. After the sale of the business, she was tasked with moving assets from one location to another, which is what she continued to do until she was laid off approximately one later.
The employee was never recalled back to work, and so she brought a claim against ASCO for wrongful dismissal and sought summary judgment. The judge found in the employee’s favour, pointing out that ASCO was not a party to the Release between the employee and 637, and therefore was not absolved from paying severance for the employee’s full work history. Further, the judge said the law required that the court view the employee’s employment as continuous. As a result, ASCO was ordered to pay the employee for a period of 20 months, which would be reasonable notice given the employee’s full work history.
ASCO appealed the decision. The Ontario Court of Appeal overturned the summary judgment, holding that the issues required a full trial to resolve. In particular, there is a fundamental disagreement between the parties as to the terms of the employee’s employment with ASCO. ASCO claims it hired the employee on a fixed-term basis as a general labourer, to assist with the relocation of assets, whereas the employee claims she understood she would continue her employment as a welder, and that the employment term was indefinite. She also claims she understood she would be credited with her time at 637. To property determine these issues, a trial is necessary. ASCO must establish its position unambiguously; failing that, it will fall to ASCO to refute the position that it should be liable for recognizing the employee’s history with 637 in assessing reasonable notice.
This case has already cost the parties significant legal fees and will continue to do so until the matter is resolved conclusively. The takeaway for any employers hiring staff from a purchased company is that a clear employment contract setting out the terms of the “new” employment is imperative. This way, there can be no discrepancy between the parties as to the length of employment, and how the employee’s previous work history with the purchased business will be treated in the event of termination.
If you are considering the purchase of an existing company, there are several issues to consider in addition to employment contracts. To discuss your potential purchase with experienced business and employment litigation lawyers, contact GLG LLP in downtown Toronto. Our firm will provide practical and comprehensive advice for all aspects of your commercial purchase, including potential employment issues that could trigger liability in the future. Call the firm at 416-272-7557 or contact them online to schedule a confidential consultation.
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]]>The post Title Not Easy to Use as a Means to Back out of a Purchase appeared first on GLG LLP Lawyers - Experienced Toronto-Based Lawyers Providing Client Centred Business, Real Estate and Litigation Services.
]]>In another recent Ontario decision, a purchase tried to void an APS on the basis of discovering municipal easements across the yard of a home they had purchased. Would this be sufficient to invalidate the contract?
The purchasers entered into an APS on February 1, 2020, to buy a residential property for the price of $1,755,000. They put down a deposit of $75,000. The purchase was scheduled to close at the end of June.
The APS contained a clause regarding the vendor’s obligation as to the property’s title, which stated:
Provided that title to the property is good and free from all registered restrictions, charges, liens, and encumbrances except as otherwise specifically provided in this Agreement and save and except for …
(d) any easements for drainage, storm or sanitary sewers, public utility lines, telecommunication lines, cable television lines, or other services which do not materially affect the use of the property.
If within the specified times referred to in paragraph 8 any valid objection to title … or to the fact that the said present use may not be lawfully continued … and which Buyer will not waive, the Agreement, notwithstanding any intermediate acts of negotiations in respect of such objections, shall be at an end and all monies paid shall be returned without interest or deduction and Seller, Listing Brokerage and Co-operating Brokerage shall not be liable for any costs or damages. Save as to any valid objection so made by such day and except for any objection going to the root of title, Buyer shall be conclusively deemed to have accepted Seller’s title to the property.
Approximately three months after signing the APS, the purchasers discovered the existence of two easements across the yard of the property in favour of the Town of Newmarket. Both easements are there to allow the municipality to maintain and tend to the sanitary and storm sewer systems. The easements require that the property owner refrain from trees, buildings, structures or other obstructions.
The purchasers brought an application to rescind the APS on the basis that they had not been informed of the easements prior to purchase, claiming they would not have gone ahead with the transaction had they been aware of the easements. They claimed the vendors were failing to provide good title in accordance with the above term of the contract. The purchasers claimed that the easements interfered with their planned use of the property, which had included:
One of the purchasers was a licensed real estate agent, who by trade, was familiar with terms used in real estate purchase contracts. The vendors did not attach a survey of the property to the APS, which would have clearly shown the two easements, however Schedule B of the APS did indicate that title was subject to two registered encumbrances. As a real estate agent, the purchaser should have known this indicated easements were present. Considering his assertion that his plans for the yard were a primary reason he purchased the property, the court found it odd that he did not make further enquiries into the registered easements. This led the court to surmise that the purchasers were attempting the use the existence of the easements as a reason to back out of the purchase.
The court found that the land affected by the easements accounted for 14% of the overall property, and that the Town of Newmarket had not accessed the easements in the previous nine years. Further, the proposed changes the purchasers wished to make were all still possible, despite the easements. While some changes may need to be scaled back in terms of size, the court found that there was still plenty of room to install a cabana, a fireplace, plant fruit trees and install a hot tub on the property. As a result, the application was denied.
The case shows that it will not be an easy task to convince a court to rescind an APS. Buyers need to be cautious when attempting to find a loophole to invalidate an agreement, or they may find themselves held to the contract in addition to paying costly legal fees associated with litigation.
The real estate lawyers at GLG LLP in Toronto assist clients with a full range of residential real estate services, including purchases and sales, financing and even litigation if necessary. The firm offers exceptional client service as well as a Bay St. experience with more reasonable rates. Call 416-272-7557 or complete the online form to arrange a consultation.
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]]>The post Recent Changes to Class Action Litigation in Ontario appeared first on GLG LLP Lawyers - Experienced Toronto-Based Lawyers Providing Client Centred Business, Real Estate and Litigation Services.
]]>The changes are broad and have not been embraced by all legal professionals in Ontario. Below, we will review the key changes to expect, and the reason some lawyers are not in favour of all of the amendments.
There are a number of changes specific to class actions in Ontario, but some of the major changes are highlighted below:
It is not uncommon for class actions to be commenced in more than one province with the same or similar subject matter. Under Bill 161, when these matters arise, Ontario courts will be required to consider whether the Ontario plaintiffs would be better represented by being added as plaintiffs to an action in another province. When weighing this option, Ontario courts will be required to consider the following:
In light of this amendment, Ontario courts will have the power to refuse to certify a multi-jurisdictional action if it is determined that the Ontario plaintiffs would be better represented as plaintiffs in an existing action in another province. Further, it will allow a party in another jurisdiction to request a stay of proceedings in an Ontario action if the subject matter overlaps.
A key step in launching a successful class action is to be certified as a class action by a court. Under Bill 161, the criteria for establishing whether a case ought to be certified will become more stringent. Going forward, plaintiffs must prove that a class action is the “superior” method for resolving the matter, above all other available options.
In addition, the plaintiffs must provide that the questions of law applicable to the group as a whole predominate over any questions of law that apply to individual plaintiffs. This is a completely new requirement for certification and is expected to overcoming the certification hurdle more challenging for plaintiffs.
The amendments would also create a mandatory obligation on a court to dismiss a class proceeding for delay if one of the following steps have not been taken within one year of commencement of the action:
Ontario’s leading law reform agency, the Law Commission of Ontario (LCO), was consulted on the proposed changes to the Class Proceedings Act. However, it is not in agreement with all of the changes included in Bill 161. In July 2019, the LCO released a comprehensive report on recommendations to improve the class action process in Ontario, many of which were adopted by the drafters of Bill 161. However, the LCO does not support all of the changes included in the Bill. In an open letter to Attorney General Doug Downey, the Law Commission of Ontario expressed reservations with the changes.
The LCO seems to have the most trouble with the new rules around certification, which the LCO claims are more aligned with American class action procedure, and will serve to make the process more challenging for plaintiffs in Ontario. The LCO expressed its concerns as follows:
“These provisions fundamentally restructure class action law and policy in Ontario by shifting the CPA’s longstanding certification test strongly in favour of defendants…effectively restrict[ing] class actions and access to justice in a broad range of important cases, including consumer matters, product and medical liability cases, and any potential class actions where there may be a combination of common and individual issues.”
The litigators at GLG LLP in downtown Toronto provide efficient and skilled trial advocacy for a range of legal issues and will look to settle your matter quickly and efficiently. Call the firm at 416-272-7557 or contact them online to schedule a confidential consultation.
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]]>The post Breach of Contract due to Coronavirus & Force Majeure Clauses appeared first on GLG LLP Lawyers - Experienced Toronto-Based Lawyers Providing Client Centred Business, Real Estate and Litigation Services.
]]>A force majeure clause, or Act of God clause, considers the obligations of the parties to a contract if a catastrophic event, beyond the parties’ control, were to occur and prevent one or more parties from fulfilling their obligations. In some cases, these clauses will set out specific events that may disrupt the performance of the contract, and in other cases, the clause is more open-ended. In specific clauses, it is unlikely that a pandemic such as COVID-19 would have been contemplated at the time the contract was created, so such a clause would be less likely to apply to the current circumstance. However, in an open-ended force majeure clause, it could be argued that the health crisis is an unforeseen event that created such upheaval, it became impossible to perform all or part of one’s responsibilities.
If successfully argued, a force majeure clause may not necessarily excuse a party from fulfilling ALL duties under a contract. This type of clause is rarely used, and so in cases where it applies, it will likely be given a narrow application. If a portion of the contract can still be carried out, a party would be unlikely to escape liability for that portion.
In order to successfully demonstrate that a party should escape liability for certain responsibilities, they will have to demonstrate that the event (in this case, the coronavirus pandemic) was outside the knowledge and control of both contracting parties at the time the contract was executed. Further, they will need to demonstrate that the circumstances make performance of the contract impossible, and not just more onerous.
For contracts that don’t contain a force majeure clause, there is still a chance that a party can point to the extenuating circumstances of COVID-19 as a way to avoid liability if the circumstances interfere with performance. Like force majeure clauses, the frustration of a contract also requires a party to demonstrate that the situation at hand made it impossible to fulfil their obligations. Similarly, the circumstances must have been beyond the contemplation of the parties when the contract was signed. Timing will play a key role here. If the contract was created after worldwide reports of the virus began, it is unlikely that the pandemic will be considered outside of either party’s contemplation. However, if the contract began six months prior, there is a higher chance of success.
As with a force majeure clause, courts are reluctant to allow a party to repudiate, set aside or completely escape liability under a contract in all but the most extreme circumstances. This is owing to the fact that it can have a major negative impact on the other party involved. The factors will be weighed by the courts on a case-by-case basis, with specific circumstances playing a significant role.
In any case, a party seeking to avoid liability for breach of contract owing to challenges presented by COVID-19 faces a long road ahead of them, but it is likely courts will be seeing a significant increase in this argument over the next several months. We will continue to watch breach of contract actions when the courts resume regular services and update readers on this issue as necessary.
Contact GLG LLP in downtown Toronto for assistance with litigation relating to breach of contract or other contract disputes. The firm’s litigators provide efficient and skilled trial advocacy for a range of legal issues and will look to settle your matter quickly and efficiently. Call the firm at 416-272-7557 or contact them online to schedule a confidential consultation.
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]]>The post Facebook Making Changes to Avoid Discrimination in User Recruitment Practices appeared first on GLG LLP Lawyers - Experienced Toronto-Based Lawyers Providing Client Centred Business, Real Estate and Litigation Services.
]]>The changes primarily relate to the ability to target or avoid candidates based on protected grounds. Characteristics protected by federal and provincial human rights legislation include:
The federal and provincial Human Rights Commissions have both raised concerns in the past relating to postings on the social media platform that appear to target and/or exclude candidates based on age, gender or postal code. Further, Facebook recently settled a major audit by several U.S. civil rights organizations with respect to discriminatory practices with postings to the site.
The changes are expected to restrict advertisers’ ability to target ads based on protected grounds, and will also ensure that all employment ads are accessible through Facebook’s Ad Library. This will allow job candidates to search all employment ads on Facebook Canada regardless of a poster’s intended audience, ensuring that the ads will be accessible to all users.
While there are many factors that go into choosing a successful candidate for a job, or even choosing who to interview for a role, there are some indicators that can demonstrate when an employer has engaged in discriminatory practices when making such decisions. Employers might be surprised to learn what may be considered evidence of this fact, so they need to exercise caution in all advertisements, communications with applicants, and decision-making discussions. For example, the Ontario Human Rights Tribunal (HRTO) recently found that one employer had discriminated against an applicant on the basis of age because the interviewer’s notes from the interview contained the word “older”, while other applicants had been referred to as “young”. In addition, the interviewer had noted the younger applicants’ ambition and computer skills, which was considered to be stereotypical against the older applicant.
Another HRTO decision found in an applicant’s favour because of what he was told when he enquired about his application status for a legal writer role with a Canadian publisher. Prior to conducting interviews, the company had reached out to the applicant to ask him about his prior employment and his year of call to the Ontario Bar. The applicant, who was 60 years old at the time, provided this information as requested. In a follow up with the company, the applicant was told that the employer was “moving toward candidates that are more junior in their experience and salary expectation”. The HRTO found that the company’s expressed desire to seek out a junior candidate was based on stereotypical assumptions around the applicant’s age and found in favour of the applicant.
As demonstrated in the cases above, seemingly neutral notes and comments can have a big impact when looked at through the lens of human rights discrimination. Employers should exercise due caution when hiring candidates or even advertising a role, to ensure that they are not unintentionally engaging in discriminatory practices.
If you are an employer looking to ensure that your hiring practices are in compliance with provincial and federal regulations, or a job candidate who believes you may have been discriminated against, contact GLG LLP in downtown Toronto. The firm’s business and employment litigation lawyers provide efficient and skilled trial advocacy for a range of employment litigation matters. Call the firm at 416-272-7557 or contact them online to schedule a confidential consultation.
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]]>The post ONCA Clarifies Defendant’s Onus in Anti-SLAPP Motions appeared first on GLG LLP Lawyers - Experienced Toronto-Based Lawyers Providing Client Centred Business, Real Estate and Litigation Services.
]]>When bringing an anti-SLAPP motion, the defendant must first demonstrate that the defamation suit was brought in respect of the defendant’s expressions on a matter of public interest. Once that has been successfully established, the onus then shifts to the plaintiff to show that the matter fits within the criteria of s. 137.1(4) of the Courts of Justice Act, which states:
A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,
(a) there are grounds to believe that,
(i) the proceeding has substantial merit, and
(ii) the moving party has no valid defence in the proceeding; and
(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
The first part of the test, the defendant’s onus to establish that the action relates to expressions on a matter of public interest, has been interpreted differently by various courts. Recently, the Ontario Court of Appeal (ONCA) sought to bring clarity to this first step in the test for an anti-SLAPP motion.
In the case at hand, the defendant was a member of the Ontario College of Teachers (the “College”), as well as the College’s Council. The defendant had filed formal complaints about some fellow members of the College and was dissatisfied with how the complaints were handled. In response, the defendant sent communications to members of the College’s Council, the Attorney General of Ontario and the Minister of Education. In some communications, he alleged misconduct on the part of the College and individual members including dishonesty, collusion, bias, harassment, and discrimination.
The College responded by bringing a claim for defamation against the defendant. The defendant then brought an anti-SLAPP motion pursuant to s. 137.1 of the Act, seeking to have the lawsuit dismissed as being against public discourse. The motion judge determined that the defendant’s claims were private grievances against the College and “[were] not matters inviting public attention, affecting the welfare of citizens, or which are the subject of any controversy other than with [the defendant]”.
The ONCA found although the motions judge had viewed the communications objectively as required, she did not apply the test properly. Without consideration of the defendant’s motives or the manner of communication, the expressions could not reasonably be said to relate exclusively to “private grievances”. The ONCA further found that the motions judge incorrectly took the defendant’s motives into consideration in ruling that the public interest element had not been established. While the defendant’s communications could be said to contain personal grievances within them, they also contained matters important to the public and therefore satisfied the defendant’s onus. Rather than moving on to consider whether the College could successfully meet the requirements set out in s. 137.1(4), the motions judge stopped at the first step.
The ONCA was reluctant to decide fully on the matter of the anti-SLAPP motion without proper consideration by a motions judge, and so the Court set aside the previous decision and remitted the motion back to be heard by a different judge.
This case demonstrates that the defendant in a defamation suit does not have a high bar to establish that that case relates to expressions about a matter of public interest. As long as a portion of the defendant’s claims can be said to relate to a public issue, as was the case here in that the complaints related to a public College overseeing teachers, the court should then move on to consider the merits and the public interest in allowing the suit to proceed as set out in s. 137.1(4).
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