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jeff@goldsteinlawyers.ca 647-838-6740

I have received a Notice of Expropriation — what now?

When the government is set to expropriate your land, you will receive a Notice of Expropriation. The Notice will include, among other details, the date on which the authority requires possession of the lands (“Notice of Possession”) and a date which the owner can select on which the property will be valued (“Notice of Election”).

Following issuance of the Notice of Expropriation, the authorities have the right to enter the property owners land to conduct an appraisal or valuation, which is then served upon the property owner.  The property owner has the choice whether to accept the offer by the authorities in full and final settlement of all expropriation related claims or to accept the offer while preserving the property owners’ right to claim additional compensation. Where the latter option is chosen, the property owner will proceed through formal or informal negotiation in the Land Appeal Tribunal (formerly Ontario Municipal Board).

The initial offer and appraisal produced by the authorities are generally below fair market value in hopes that the property owner does not consult professionals to determine a fair price for their expropriated property.  It is imperative that as a property owner being expropriated by the authorities you do not accept the initial offer of compensation and rather consult experienced legal counsel to discuss your rights and obligations.

Expropriation is a complicated process that requires the assistance of experienced professionals (lawyers, valuators, real estate appraisers, land use planners, etc.). 

Goldstein Law is well-versed in the case law related to expropriation and the necessary procedure to ensure you maximize the value of your expropriated business or property. Contact us today if you have any questions at 647-838-6740.

Terminating a Fixed-Term Contract

If you are an employee of a company, it is likely that you are working for the employer in accordance with the terms of an employment contract. A standard employment contract that does not indicate any ‘term’ or length of employment, is presumed to be of “indefinite duration.” An indefinite duration employment contract has no fixed end date; accordingly, the employee continues to accumulate service with the employer over time.

If no triggering event occurs, such as (1) the employer terminating the employee’s employment without cause; (2) the employer terminating the employees’ employment for just cause; (3) the employee resigning from his or her employment; (4) the employee resigns from his or her employment as a result of an intolerable work environment (commonly referred to as a constructive dismissal) or resigns for other opportunities, then the employee is deemed to continue in his or her employment for the foreseeable future.

Conversely, a fixed-term employment contract stipulates a start date and an end date of employment. Employers will typically hire workers on a fixed-term contract to replace other workers that are on leaves (i.e., maternity leave) for a defined period of time or to increase staffing levels for a specific project. The worker can still be considered an employee of the company (not an independent contractor) and the regular protections of the Employment Standards Act are still afforded to the employee operating under a fixed-term employment contract; however, the most important provision to consider when entering into such a contract is the language contained in any termination provision.

In a fixed-term employment contract, the employer does not automatically have the right to terminate the contract early and provide reasonable notice or payment in lieu thereof as is required in the dismissal of an employee operating under an indefinite duration employment contract. Rather, the parties to the fixed-term contract must clearly and unambiguously set out what the severance obligations of the employer are should the employment contract be terminated before the end of the fixed-term. Absent clear and specific language in the fixed-term contract around the amount of termination pay a fixed-term employee is entitled to should the contract be terminated before the end of the term, the employee is entitled to be paid out for the balance of the contract.

In other words, if you are an employee that was hired for a one-year fixed term contract and the employer terminates your employment after 6 months on the job, you may be entitled to payment of the entire balance of the contract (i.e., remaining 6 month period). Accordingly, in the context of a fixed-term employment contract, employers’ could be on the hook for much more than the employees’ common law severance entitlements which would apply if an indefinite duration contract governed the employment relationship. While employers’ are permitted to enter into fixed-term contracts, and sometimes do so in the expectation that severance obligations will be minimized or avoided in the event of termination, the opposite often results. For employees, your entitlement depends on whether the fixed-term employment contract contains an enforceable termination provision which limits your entitlement on termination.

As always, it is best to consult a highly-rated employment lawyer to review your employment contract and the circumstances around your dismissal to determine whether you have any right to greater severance or other damages that have been provided to you by your former employer.

Tax Implications of Wrongful Dismissal Settlements

When you are terminated from your employment, do not sign the severance package offer, assuming you have been terminated from your employment without cause, before you consult with an experienced employment lawyer.

If the employment lawyer determines that the severance package offered is not reasonable in the circumstances, counsel should first attempt to negotiate a settlement and the revert to litigation if the negotiations do not bear fruit. If your lawyer is successful in enhancing your severance package, whether through negotiation or subsequently litigation, there will be tax implications of any settlement you may receive.

Typically, employees’ prefer a clean break from their former employers; to that end, there is a preference for a lump sum settlement over a series of salary continuance payments for the duration of the notice period. Any lump sum payment will have tax implications, which will likely be different from the tax rate applied to your typical payroll receipts.

A retiring allowance is a sum of money received by a departing employee on account of a retirement payment for long service. Many lump sum payments on account of the termination of employment are classified as retiring allowances. The taxation of retiring allowances is prescribed by the CRA as follows:

-10{a739806ea1ec03325fdb6a8791d85aad1201ada6e9f0c1ac6e9348733b242bdc} on the first $5,000;
-20{a739806ea1ec03325fdb6a8791d85aad1201ada6e9f0c1ac6e9348733b242bdc} for amounts between $5,000 and $15,000; and
-30{a739806ea1ec03325fdb6a8791d85aad1201ada6e9f0c1ac6e9348733b242bdc} for amounts over $15,000.

In order to avoid the above-noted tax, terminated employees have various choices including (1) allocation a portion of the settlement to an RRSP, so long as there is sufficient contribution room for the year; (2) classifying a portion of the settlement towards legal fees (“legal fee allocation”); or (3) classifying a portion of the damages as general damages on account of human rights claims.

If you are seeking counsel to negotiate an employment settlement, please contact our law firm today.

Standard Real Estate Deals – Not so Standard

Standard Agreements of Purchase and Sale in residential real estate transactions are skewed in favour of vendors – as such, it is imperative that home purchasers’ consult with a lawyer to review contracts in advance of signing in order to avoid a real estate dispute.

Ignoring the legalities of Agreements can lead to harsh consequences for buyers or sellers that want out of a deal. When you are purchasing a property, the purchaser is accepting title subject to restrictions that have been registered on title. For instance, the parking of commercial or other vehicles may be prohibited on your driveway. If you work for a trucking company or have a boat, you may then be unable to park it on your newly purchased driveway.

When markets are soft or falling, as experienced in mid-2017 in Toronto, the terms of an Agreement of Purchase and Sale take on more importance, as purchasers may want to back out of deals. We recently advised a vendor client to add specific provisions to her Agreement of Purchase and Sale, as the client was skeptical as to whether the buyer would be able to close the property on the closing date. Accordingly, the Vendor retained the right to “sell the property to another party if offered a price satisfactory to the buyer before the closing date herein.”

The above-noted provision permitted the vendor to continue shopping the property in case the original vendor did not close the deal. Ultimately, the first buyer did not close on account of a failure to sell their own residence in time – but our client had already lined up an alternate buyer because the house remained listed and on the market.

Various strategies can be employed by vendors or purchasers to real estate transactions to protect their rights and obligations. If you require assistance in negotiating a purchase and sale or handling a real estate litigation dispute, please feel free to contact Goldstein Law Firm.

Is Your Severance Package Fair?

Many employees that have worked for extensive durations with the same employer are terminated without cause and without warning. We have represented clients that have worked for over 30 years for the same employer. What often amazes me is that those employees often blindly trust their former employer with respect to the severance package offered following termination.

Do not conclude that you will be provided with a fair severance only because an employer has employed you for a long period of time. In fact, the longer one’s duration of service with a company, the greater severance you are likely entitled.

Courts have determined that employees are entitled to a range of severance package – amounting to between 2 weeks per year to 1 month per year worked. Sometimes the amount awarded by a Court is above or below the indicated range. Other time, savvy employers, who have likely consulted with an employment lawyer, include termination clauses in their employment agreements, which restrict an employees’ entitlement on termination to the minimum amount prescribed by the ESA. If this provision is contained in your employment contract, you are likely not entitled to more severance pay, though the term has to be drafted in a specific, unambiguous manner for it to be enforceable.

The company may however not be provided all forms of compensation during the severance period. For instance, many employees may have earned a commission representing a substantial portion of their overall compensation. If the company calculates your severance on your base salary only, you may be short-changed.

There is no obligation in contacting an employment lawyer to review your severance package for free. We are ‘honest lawyers’ (can you believe it!), and we will genuinely advise you if you have a case. We hear about lawyers asking for massive retainers from individuals that have marginal cases. If we do not believe that your case has value for you, we will not take it on.

Please contact an employment lawyer today for a no-obligation consultation at 647-838-6740.

Bill 148 – Other Changes to Employment Laws in Ontario

Bill 148, the Fair Wages, Better Workplaces Act, 2017, is one of the largest overhauls to Ontario’s employment laws in decades. The change that has garnered the most attention is the increase in the minimum wage to $14.00 per hour; however, there are a number of other changes that employers and employees alike have to be familiar with to comply with their obligations.  The following note provides a sample of a few of the changes that workers in Ontario must be apprised of:

No Sick Notes – an employee calling in sick is no longer required to provide a sick note from a doctor to substantiate the medical leave. We have often confronted problems when employees take unjustified or unsubstantiated absences, which can lead to allegations of just cause for dismissal. The threshold for just cause has been raised by the introduction of this law, as employees have such limited obligation to their employers if they are unable to attend work due to a sickness.  The rationale for this policy is partially to free up doctors’ time to attend to other patients rather than write sick notes for absentee employees.

Vacation Pay Changes – employees that have been employed with the same employer for more than 5 years are now entitled to a minimum statutory vacation of 3-weeks per year; whereas workers with less than 5 years of tenure with an employer continue to be entitled to 2-weeks of vacation pay per year.

Scheduling Rules – employees have the right to request a change to their schedule or location after three (3) months on a job; employees can refuse shifts without reprisal if they are notified 96 hours or less prior to the start of the shift.

Personal Leave Enhancements – Previously, only companies with 50 or more employees were statutorily mandated to require personal emergency leave; workers of all employers, regardless of size, are now entitled to 10 personal emergency leave days per year, the first of 2 which must be paid.

Compliance with the above-referenced changes to Ontario’s employment laws as introduced by Bill 148 is mandatory. Employers should ensure that they are complying with their statutory obligations to avoid any complaints and potentially penalties issued by the Ministry of Labour. For further information on all of the changes introduced by Bill 148, employers and employees are advised to contact an employment lawyer well-versed in the legislation.

Will I Receive Any Funds If I Do Not Sign An Initial Severance Offer?

Clients call Goldstein Law Firm on a daily basis after being terminated from their employment. One of the common questions we receive from people is – if we do not accept the initial severance offer and alternatively enter into a negotiation or litigation against our former employer for wrongful dismissal, will we receive any funds during the proceedings?

Terminated employees are typically desperate for pay to bridge the time while they are unemployed; as such, people are often hesitant to reject the initial offer in fear that they will not receive any funds until a settlement is reached.  This is a popular misconception.  Irrespective of whether the employee agrees to the initial severance offer, the employer is required to pay the employees’ statutory entitlements in accordance with the Employment Standards Act (“ESA”), which includes up to 8 weeks of termination pay and, if the specific formula as governed by the ESA is satisfied, then one-week per year worked in severance pay; accordingly, if you have been employed for a substantial number of years prior to termination, your statutory entitlements can be significant.

After your statutory entitlements are fully paid by the employer, if the wrongful dismissal case is not yet resolved, employees that are terminated without cause are eligible to receive Employment Insurance (EI) benefits, subject to accumulating sufficient insurable hours prior to the termination. EI is another form of income replacement to bridge the gap following a termination. Should a settlement for wrongful dismissal be reached following the receipt of EI Benefits, Service Canada may calculate an EI repayment, which would require a portion of the severance package to be deducted based on the amount of EI received during the notice period.

Nevertheless, to summarize, employees are entitled to payments following a termination without cause, whether or not the original offer of severance is accepted. Such obligations are mandated through employment legislation in Ontario, which provides income support to terminated employees. Accordingly, the biggest risk to an employee is accepting an initial severance offer than falls well below their legal entitlements, thereby leaving potentially thousands of dollars on the table only because they are ill-informed.  As such, it is imperative that you consult with an experienced employment lawyer following the termination of employment to understand your legal rights.

Termination for Cause – Recent Example

As we have discussed previously in this blog, terminating an employee for just cause has been considered the ‘capital punishment’ of employment law. As such, the employee ought to have displayed misconduct so egregious to justify such a termination. The onus of proving just cause is on the employer.¹

Absenteeism and lateness, ² fraud, theft, dishonesty, or a series of improper behaviors can justify a termination for cause. The Court will apply a contextual analysis; considering the surrounding circumstances, such as the duration of the employment, the number of previous incidents of misconduct, the age and specialization of the employee, among other things.³

If an employer does not have cause for termination, then the employer is required to pay reasonable notice of termination or payment in lieu thereof. The factors considered by the Court in determining the length of reasonable notice include age, length of employment, seniority, specialization, and any other extenuating factors, as initially enumerated by the Court and as commonly referred to as the Bardal factors. In terms of an employees entitlements to termination pay in the event of a just cause termination, an employee is entitled to the minimum statutory notice as outlined in the Employment Standards Act (“ESA”), and, absent an enforceable termination provision limiting the employees’ entitlements upon termination to ESA minimums, reasonable notice of termination or payment in lieu thereof at common.

With respect to just cause terminations, the Court has held that the standard of conduct required to negate an employees entitlement to reasonable notice of termination at common law is lower than the high threshold of misconduct required to nullify an employees entitlement to ESA entitlements. In other words, employees that display gross misconduct may still qualify for minimum ESA entitlements, which can be rather substantial if a long duration of employment has accumulated, but at the expense of his or her common law entitlement.

If you have been terminated from your employment for cause, it is imperative that you consult with an employment lawyer about your rights and obligations.

 

 

¹Dowling v. Ontario (WSIB) 2004 CanLII 43692
² S. v. H. & D.P.M. Inc.,1999 CanLII 14865 (ON SC
³
McKinley v. BC Tel, 2001 SC 38