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Archive for November, 2011

Can emails constitute a binding agreement of purchase and sale?

November 25th, 2011

In the recent New Brunswick decision of Girouard vs. Druet, [2011] N.B.J. No. 260, the Court held that an email exchange constituted a binding written agreement of purchase and sale. Girouard was interest in a particular condo building in downtown Moncton. After responding to a Kijiji ad regarding the rental of a unit in the building, Girouard discussed the possibility of buying the condo from Druet over the telephone. The parties agreed to carry on their discussion through email.

On October 24, 2011, Druet sends the following email to Girouard: “After giving the idea of selling my condo some more thought I have come to a decision. I would sell it to your for $160,000 conditional that you take over the current mortgage and pay the legal fees associated with the purchase. (I estimate about $800).”

That same afternoon, Girouard replies: “Thank you Kelty, I will meet you half way @ 155000.00 and pay legal fees and assume existing mortgage.”

On October 25, 2011, Druet writes: “Sorry for the late reply – I’ve been thinking about it. I will accept your offer. How would you like this to go?”
Girouard responds to Druet by advising that he can have a sales and purchase agreement drafted for Druet’s review. Girouard also asks Druet whether a November 15 closing date is acceptable and asks if the mortgage holder is a Moncton or Halifax bank.

Three hours later, Druet responds, “My partner has been in Peru the last few days and I just got to speak with him tonight about the condo. He was not agreeing with the price so I am sorry but I cannot sell to you.”

In Girouard’s last email, he maintains the position that the parties have a valid contract for the sale of the condo and intends to hold Druet to same.
It is not contested that Druet was the sole owner of the condo. Nor is it contested that the parties wrote the emails as produced. No closing date was agreed upon. No cash deposit was suggested or paid. I don’t even think that Girouard went to see the condo in question. Nonetheless, the Judge found a basis for binding written agreement of purchase and sale in the email exchange between the parties.

The Judge rejected Druet’s argument that Girouard’s email advising that he would provide a purchase and sale agreement suggests that the earlier emails were merely a contract to contract.

In his analysis, the Judge decided that the emails would constitute a binding purchase and sale agreement of the condo had the emails been written and physically signed. All of the following essential terms of a contract for the sale of land were found: an offer, an acceptance, the parties, the property, and the purchase price. The Judge noted that internet and emails have become a way of life for both business and individuals.

Leave to appeal has recently been allowed. We await the final determination of this decision.
It is not clear as to whether this case would have been decided differently in Ontario. Only time will tell!

Pain Clinic Conference

November 21st, 2011

DSF was a proud Platinum Sponsor of Toronto Rehab Pain Conference 2011 which was held on November 18th at the Hyatt Regence Toronto on King. Pain Management across the Continuum: Bridging the Gap from Acute Care to Rehabilitation and into the Community was a main theme and our lawyers: George Frank, David Derfel and David Schell presented Workshop 3: Barriers and Challenges, Providing Chronic Pain: A Lawyer’s Perspective.

Spousal Support… How Much Will I Get?

November 15th, 2011

Once you are able to prove you are entitled to receive spousal support (or, if you are the payor, once you have been advised that you will have to pay some spousal support to your spouse), the next question is, how much and for how long? There are no legislated guidelines for spousal support similar to the federal Child Support Guidelines for child support. The closest tool we have, which most judges are relying on, is the Spousal Support Advisory Guidelines, or the SSAGs, as commonly referred to. The SSAGs are extremely complex and it is advised that you speak with a family lawyer about your spousal support rights and obligations while using this tool.

The SSAGs take into account the parties’ ages at the time of separation, the length of cohabitation, the parties’ incomes, and how much child support is being paid, among other more complicated factors. Once this information has been plugged into the SSAG software program, a range of spousal support, both for the quantum and the duration, will be calculated. The range, based on quantum, will be set out using a low-end point, a mid-point and a high-end point on a scale. The mid-point is usually a good starting place to determine how much spousal support should be paid, although there are many factors to consider when determining a fair amount, both to the payor and to the recipient, while taking into account both parties’ standards of living and needs. For example, in cases where the recipient is disabled, spousal support based on the high end of the scale may be appropriate. Conversely, in situations where the cohabitation period was only two years, spousal support based on the low end of the scale may be appropriate. The range, based on duration, will be set out using an end date range that corresponds with the amount of time the parties cohabited together. In some cases where the parties have had a long-term relationship and one party earns a great deal less than the other, the duration may be calculated as “indefinite” using the SSAG program. This suggests that a time-limited period of spousal support may not be appropriate given the facts of the situation.

Spousal Support… Will I Get It?

November 15th, 2011

Spousal support is one of the more complex issues in family law. A spouse, whether married or common-law, does not automatically receive spousal support from the other spouse. In order to receive spousal support, one must prove that they are entitled to receive it. Proving entitlement under section 33(9) of the Family Law Act involves considering all of the following:

Both parties’ current assets and means;
The assets and means that both parties are likely to have in the future;
The dependant’s capacity to contribute to his or her own support;
The payor’s capacity to provide support;
Both parties’ age and physical and mental health;
The dependant’s needs (while considering the standard of living the dependant had while the parties resided together);
The measures available for the dependant to be able to provide for his or her own support and the length of time and cost involved to take those measures;
Any legal obligation of one of the parties to provide support for another person;
The desirability of one of the parties to remain at home to care for a child;
A contribution by the dependant to the payor’s career potential;
If the parties are spouses, the court will also consider:
1. the length of the cohabitation;
2. the effect on the spouse’s earning capacity due to the responsibilities assumed during the cohabitation;
3. whether the spouse has undertaken the care of a child who is older than 18 but has an illness, disability or other cause withdraw from parental control;
4. whether the spouse has undertaken to assist with the education for a child older than 18 or who is unable to withdraw from parental control;
5. any housekeeping, child care or other domestic service performed by the spouse for the family;
6. the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and,
Any other legal right of the dependant to support, other than out of public money.

The conduct of the parties is only relevant if one party’s conduct is “so unconscionable as to constitute an obvious and gross repudiation of the relationship”. Therefore, the fact that one spouse may have had an affair or the parties signed an agreement opting out of spousal support when it would be grossly unfair in the circumstances, may not enough to extinguish the obligation of one spouse to pay support to the other if that person is a dependant and entitled to receive spousal support. It may, however, affect the quantum.

Independent vs. Dependant Contractors – What’s the difference?

November 14th, 2011

There are many examples of people who are employed in the workforce as “independent contractors”, such as independent sales agents, consultants, legal professionals, just to name a few. However, just because an employment contract states the employee is an “independent contractor/agent”, doesn’t necessarily mean that such an employee is “independent” for the purposes of employment rights. An “independent contractor” may in fact be a “dependant contractor”, or even a full-fledged employee, which changes their entitlements quite drastically.

In a 2007 Ontario Superior Court of Justice case, Slepenkova v. Ivanov, the employee, who was employed as an “independent contractor” real estate agent for a firm operating under a brokerage, was deemed to be an employee for the purposes of determining reasonable notice upon termination of employment. The plaintiff employee had signed multiple agreements over a 3 year period, agreeing to work for the defendant employer as an “independent contractor”. However, the plaintiff had also initially signed a general employment agreement with the real estate brokerage that employed her employer, which contradicted her subsequent agreements with the defendant employer.

In determining the issue of the nature of employment, the Trial Judge, considering the existing agreement between the plaintiff and the real estate brokerage, took note of the following factors:

That the employer had substantial control over the employee;
the employer owned and provided the majority of the tools the employee used in the course of her employment duties;
the employee’s chance for profit was limited;
the employer bore most of the risk of loss;
the business was clearly the employer’s.

The above factors, all answered in the affirmative, clearly demonstrate that, regardless of the label given to an employee in an employment contract, employers cannot contract out of their obligation to provide reasonable notice upon termination, among other entitlements afforded to employees under statutes such as the Employment Standards Act, as well as the common law, merely by stating that an employee is an “independent contractor”.

Thin Skulled Plaintiffs may be able to Collect on Chronic Pain

November 14th, 2011

When someone gets injured in an accident, any claim for damages must stem from injuries that resulted from the accident in question. In Heyward v. Young, a Nova Scotia Supreme Court case decided in 2011, the Plaintiff, who was injured after the defendant driver t-boned his car, suffered from severe migraine headaches, and an MRI of his head post-accident revealed residual scarring to the inferior frontal lobe. At trial, the Defendant produced evidence to support, on a balance of probabilities, the fact that the sustained brain injury had resulted from an unrelated assault on the Plaintiff 15 years prior to the accident.

The Plaintiff’s pre-existing susceptibility to brain injury, making him a “thin-skulled” plaintiff in legal jargon, removed the causation element required to prove that, but-for the motor vehicle accident, he would not have suffered the brain injury. However, the Plaintiff’s migraine headaches, which did materialize after the accident, and developed into long-term chronic pain syndrome, were recognized to be directly attributed to the accident in question. Despite the fact that a pre-existing condition may have exacerbated the chronic pain, the Plaintiff was still awarded a sizeable general damage award, as well as a modest future care award.

Medical Examinations and Employee’s Right to Privacy

November 8th, 2011

Though employers are legally responsible to maintain a healthy and safe workplace, that responsibility must be weighed against an individual’s right to privacy regarding his or her medical conditions. As such, if an employer has a legitimate purpose tied to the employer- employee relationship, it may be justified in requesting medical information regarding an employee. That being said, the extent of the information to be divulged should be limited to the extent to which the employee can perform his or her job function, and not necessarily the nature of the illness or injury.

The Declining Role of “Character of Employment”….

November 7th, 2011

The Declining Role of “Character of Employment” in Determining the Notice Period

“Character of employment” is one of the four factors that the courts consider in determining the notice period when an employee is wrongfully dismissed (the other 3 are age, length of service, and length of time needed for the employee to find a new comparable job). Typically, an employee who worked in an executive, managerial or skilled position is entitled to a longer notice period than an employee whose job is clerical or administrative in nature. This is an example of how the courts have dealt with the “character of employment” factor. The assumption was that there are more higher level positions available than administrative jobs, which means that an employee seeking a new managerial job would typically take longer to find employment than a recently terminated administrative employee.

In Di Tomaso v. Crown Metal Packaging Canada LP, the Ontario Court of Appeal recently considered what the appropriate role of an employee’s “character of employment” should be in determining the notice period. In this case, the employee worked for 33 years as a mechanic and press maintainer, and admitted that this was an unskilled labourer position. At trial, he was awarded a 22 month notice period. Despite the employee’s many years of service, the employer argued for a reduced notice period on the basis of the “character of employment.”

In upholding the 22 month notice period, the Court of Appeal suggested that character of employment is “a factor of declining relative importance,” especially when an employer “attempts to use character of employment to say that low level unskilled employees deserve less notice because they have an easier time finding alternative employment.” It is a proposition that “cannot simply be taken for granted, particularly in today’s world.” In other words, we cannot simply assume that an employee seeking a new managerial job will take longer to find employment than a recently terminated administrative employee, and that the managerial employee should therefore be entitled to a longer notice period.

Do Human Rights Bodies Have Jurisdiction to….?

November 7th, 2011

Do Human Rights Bodies Have Jurisdiction to Award Legal Costs to the Successful Party?

In legal proceedings that have been commenced in court, the party who is successful at trial is generally entitled to recover a portion of their legal costs from the opposing party.

The Supreme Court of Canada recently considered the question of whether a party who has succeeded at a hearing at the Canadian Human Rights Commission should also be awarded a percentage of their legal expenses, to be paid by the other side. More specifically, the court considered whether the provisions of the Canadian Human Rights Act which authorize the Tribunal to “compensate the victim for any expenses incurred as a result of the discriminatory practice” permit an award of legal costs.

The Supreme Court ultimately decided that the Tribunal had no authority to award legal costs, since “costs” are to be distinguished from “compensation” and “expenses.” The court further commented that the lower court decision, which would have permitted a costs award, made its decision based on what it thought was a beneficial policy outcome, rather than engaging in a proper legal analysis.

This decision will hopefully encourage the government to amend the Canadian Human Rights Act, and other provincial human rights legislation, to permit human rights bodies to award costs. This way, employees with valid human rights complaints will be encouraged to continue bringing them, and employers would be able to recover legal costs from employees who initiate frivolous human rights complaints.

Access Assessments Help Courts Decide Who Should Parent the Kids

November 6th, 2011

Judges sometimes feel that they do not have the proper training to determine what is in a child’s best interests, because a judge’s training is in the law and not in child welfare. In difficult cases, they may want to have a child-focused mental health professional provide advice as to what the custody/access or parenting plan should look like. Often, parents agree that the court needs help from a professional to determine who should parent the children. However, a judge who feels that there are clinic issues that are outside the scope of the judge’s legal training can order such an assessment to investigate those issues.
Custody/access assessors are social workers, psychologists or psychiatrists who are familiar with how to conduct custody/access assessments and regularly do that type of work. They meet with the lawyers, and then with the parties, usually several times, sometimes together and sometimes apart. The custody/access assessor usually meets with the children as well. Often the assessor will speak to other professionals and other people who are important in the children’s lives.
One or both of the parties pay for the custody/access assessments. It is rare for such assessments to costs less than $10,000.00. If the parents cannot afford that amount, the court can ask the Office of the Children’s Lawyer to become involved in the case. That publically funded agency can decide whether to accept the referral and what type of assistance it will provide. It may decide to provide a “clinical investigation”, which is a similar to a custody/access assessment. If the Office of the Children’s Lawyer refuses to assist, then a judge can still order a custody/access assessment even if it will cause financial hardship for the parents.
At the end of this process, the assessor forms an opinion as to which parent should make which decisions regarding the children and what time the children should spend with each parent. The assessor then communicates his or her opinion to the parties. If the parents do not agree with that opinion, the custody/access assessor’s role is limited to being a witness at trial. The Trial Judge can accept or reject the assessor’s opinion. However, the opinion of a custody/access assessor is usually very persuasive to a judge.