Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

Sometimes when a proceeding is ongoing in a civil court in Ontario you may realize that you need to add, delete or substitute a party to the proceeding. If you need to do so, you have to follow specific Rules that are contained in the Rules of Civil Procedure.  Today’s lecture will cover those rules and explain to you how you can add delete or substitute a part

This lecture is for educational purposes only. If you have any specific questions about your case you should contact a lawyer or a paralegal or the Law Society for Ontario for a referral to one of the legal experts.

We will specifically discuss Rules 26.02 and 26.03 with respect to the addition, deletion or substitution of parties you may notice by reading the rules that Rule 26 deals with all kinds of issues regarding the amendment of pleadings. Now Rules 26.02 and 26.03 apply number one to all parties – whether you are a plaintiff, defendant, 3rd party applicant or respondent. As long as you are a party to a proceeding you can follow these Rules to make the changes regarding the addition, deletion or substitution of parties.  Secondly, these Rules apply in the same manner to all pleadings whether it’s a statement of claim, statement of defence, application, response to an application, 3rd party claims, cross claims – whatever the nature of the pleadings.  

We will explain the application of these Rules by an example.  Let’s say that you have issued a statement of claim against 2 defendants: number one ABC Inc. and number 2 CDE Inc. These are the 2 defendants named in your statement of claim. You want to add a party; delete a party or substitute a party—we will cover these topics one by one.

Adding a party:  Lets say you realize that XYZ Inc. is also a company that should have been a defendant in your claim. You have discovered some new facts that explain to you that XYZ Inc. should be a proper party.  Now you want to add a party.  You have already issued your claim and you have all already named the 2 defendants and XYZ Inc. was not a party at that time. How do you go about adding XYZ Inc.? 

There are 2 ways: number one you get a consent of all parties including the party that needs to be added (that means you get consent of ABC Inc, CDE Inc. and XYZ Inc.). You get that consent and with that consent you file the amended pleading with the court office.  The 2nd option is you bring a motion.  You obtain leave of the court. You bring the motion before a judge or a master depending upon your jurisdiction and then the master or judge will approve your pleadings. The motion needs to be served on all parties for you to be able to argue before a master or a judge. There are 2 ways to do that consent of all parties, including party to be added or obtain leave of the court by way of a motion.

If you want to substitute a party:  For example you realize that CDE Inc. was not the right name of the party it should have been XYZ Inc. And so you want to substitute the party you want to remove CDE Inc. and substitute it with XYZ Inc. How do you go about doing that?  Again there are 2 ways to do that: number one you get consent of all parties including the party to be substituted (in this case again it’s ABC Inc., CDE Inc and the party to be substituted as XYZ Inc.)  You get consent of all parties. You file it with the court.  Or you get the leave of the court like in the last scenario.

If you want to delete a party: You realize that CDE Inc., which was originally named in your claim should not be a defendant in this action and you want to remove that party—you want to delete that party—how do you go about doing that? You have 2 ways to do that: you get consent of all parties (ABC Inc. and CDE Inc). Or you bring a motion and obtain the leave of the court to do so.  

There are 2 Rules that allow the court to amend your pleadings. 1st is Rule 5.04(2) which gives power to the court to add, delete or substitute a party at any stage in the proceedings.  Once the proceedings are filed you can add, delete or substitute a party up to trial—at any stage in the proceedings—by following the Rule that we have just discussed. If you realize that a party needs to be added or deleted or substituted just before the trial you are allowed to bring this motion or obtain the consent of parties and go ahead and do that and the court has the power under Rule 5.04(2) to grant you that amendment.

Rule 37.02(3): This specific Rule gives power to the court’s registrar to add, delete or substitute a party when you have the necessary consent filed with the court. In this case when you have consent of all parties you don’t need to go in front of a master or a judge. You simply go to the window at the court office and you file your documents with them.  The registrar will approve your amendment of the pleadings.

The thing that you want to keep in mind is that if you want to add, delete or substitute a party once the pleadings have been filed, then the only way to do that is by following the Rules that we have just discussed. Once the amendment is granted you have to serve on all parties the amended pleadings.

Hopefully this gives you a sense of how to add, delete or substitute a party if you come across this scenario in your specific action or application and you follow these rules and get your amendments done.

Thank-you for watching.

Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

Today we will talk about restrictive covenants in an employment contract.  We will explain to you what a restrictive covenant is; what are different kinds of restrictive covenants that are usually seen in employment contracts.  Then we will specifically talk about non-competition clause in an employment agreement.

This course is not legal advice.  This is only for educational purposes. If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or contact the Law Society of Ontario for a referral.

What is a restrictive covenant?  Very simply a restrictive covenant limits an employee’s ability to do something either during employment or at the end of employment (after employment for a certain period).  It is restricting an employee to do certain acts.  What are those acts?  Those are contained in the specific restrictive covenant that will be in the employee’s contract.  What are some of the common restrictive covenants? The most common one is a non-competition clause.  The other one is a non-solicitation clause which is quite common in employment contracts.  Confidentiality clauses are common in employment contracts.  If you are dealing with any intellectual property of the employer then you may see restrictive covenants relating to intellectual property.

What is the non-competition clause? It simply limits competition with the employer.  If you are an employee, a non-competition clause basically limits your ability to compete with your employer while you are employed and even after your employment has ended either by resignation or even by termination of employment. Most of the non-competition clauses do not talk about non-competition during your employment because that is, sort of, given if you compete against or compete with your employer while you are employed that is simply a breach of your employment contract.  You have an underlying implicit duty to be faithful and loyal to your employer and work in the best interest of your employer.  If you are competing with your employer then that immediately is ground for termination for cause and maybe an action against you for damages.

Most of the non-competition clauses deal with what happens after your employment has ended but essentially what the non-competition clause is doing is limiting an employee’s ability to compete with the employer.

An example that I can give you here is: let’s say that you’re a dentist and you work as an employee or as a dentist for a specific company.  They may have other dentists at that location but you don’t own that business. You are an employee in that business or an independent contractor (in specific circumstances of your case).  Let’s focus on an employment situation.  Let’s say you’re an employee of that dentistry practice.  Your employment contract may contain a non-competition clause that may limit your ability, for example, that once your employment is ended to start your dentistry practice next door or within 500 meters of the previous employer’s dentistry practice. 

The underlying reason obviously, for the employer to have such a clause is that the employer has brought you in – maybe has given you the opportunity to work and learn your skill or refine your skills, interact with customers and whatnot.  Having acquired those skills and having acquired those relationships, the employer does not want you to walk out and then compete with the employer and diminish the employer’s practice.  That’s one of the underlying rationale behind why you may see a non-competition clause in your employment contract.  Non-competition clause is limiting an employee’s ability to compete with the employer in its essence.

What are some of the underlying legal principles with respect to non-competition clauses? Let’s go over these one by one.  The fundamental legal concept that is at play here with respect to non-competition is that there are 2 legal principles: one is freedom of trade.  We, in our democratic and capitalist society encourage competition; we encourage that people are entitled to earn their living in any legal manner that they deem fit and that may include competing with others.  There is the value of trade freedom, of your ability to earn your living the way you would like to, as long as it’s legal.  That’s one of the principles. 

At the same time there’s another legal principle that businesses should be able to protect their legitimate business interests.  One of the legitimate business interests may be that you have hired someone to work for your company, you have trained them, you’ve given them knowledge, or given them ability to meet customers, know your customers and whatnot.  There is a legitimate interest maybe at play for that particular company or employer that you should not walk away and then take away their business. Those are the 2 competing principles that a court is considering when a court is deciding whether to enforce a non-competition clause or not.

With respect to the enforceability of non-competition clauses, I can tell you as of today, April 24th 2019, courts in Ontario and in Canada are extremely reluctant to enforce a non-competition clause.  The general weight of our jurisprudence, as it stands today, is that if there is a non-competition clause the courts generally do not like to enforce.  They will find ways to determine that the clauses are enforceable. Even though the court will rule upon it, remember, that we believe in freedom of contract.  If you have agreed to a contract the court is bound to enforce that contract unless that contract is not in breach of law, in general or a specific statute.  There’s a freedom of contract.  If you agreed to a non-competition clause, you’re agreeing to it. 

For the court to not find it enforceable court has to use some other legal principles rather than saying that even though you signed it we’re not going to enforce it.  No, that’s not the reason why the courts will not enforce it. The court will have to find some other legal principles to say that even though the clause is there we’re not going to enforce the clause in its form because of certain legal principles and we’ll talk about it in our next slide.

Another legal principle for a non-competition clause to be enforceable should be the clause—the way it’s drafted—it should be narrowly drafted; it has to be very clear, there shouldn’t be any vagueness or ambiguity in the clause and the clause should be reasonable.  Those are the 3 things that the court will consider when reviewing a clause for its enforceability.

What is the legal framework when there is a case before a court? –  in which the employer or the former employer of that employee comes to court and says that here is the contract, it was properly signed, was properly executed, it is enforceable and here is a non-competition clause.  We want the court to enforce it because our former employee is now competing with us. What is the legal framework that the court will use to determine whether that clause in forcible or not? Number one, the court will look at the geographical limit in that specific clause.

Let’s take our dentistry example. Imagine for the sake of our example that this specific dentistry practice was based in downtown Toronto. There’s one office/one location based in downtown Toronto. Most of the clients (most of the patients) that come to that dentistry practice are also located in downtown Toronto. That’s how that practice is operating. The non-competition clause says that you, the employee, cannot compete against this dentistry practice anywhere in the GTA—let us say it is nowhere within the Greater Toronto Area can you operate another dentistry in competition with us.

The court will then examine this geographical limit very closely. Remember the underlying principle is if they can find it unenforceable they will try to make it unenforceable.  Is that geographical limit reasonable? Whether it’s clear, number one.  If you say, this is the radius, this is the Greater Toronto Area—whatever the term that you’re using, the court will see whether it’s clear, it’s unambiguous and then whether it’s reasonable.  In this case if most of the business that is coming to that dentistry is within, let’s say, 5 square kilometers in downtown Toronto, then the court will say why is it reasonable for you, the employer to say that you cannot compete against me in the entire GTA.  That’s fundamentally unreasonable. The court may say that there are already let’s say 20 to 30 dentistries that are already in competition with you within the 5 square kilometers and you imposing a limit of 30 to 50 kilometers for the entire GTA is unreasonable.

In that case the court is now closely watching whether the limit that you’re imposing is reasonable to begin with.  If that’s not reasonable as most of your clients are within 5 square kilometer radius, then any limit that is beyond 5 kilometer radius is going to be unreasonable. The court will throw that clause out because the geographical limit is unreasonable.

Then the court will look at the temporal limit—for how long is the employee required not to compete against the employer.  Let’s say in this dentistry practice example: You are the dentist. You work with that dentistry for 5 months but the temporal limit in your non-competition clause says that you cannot compete with that dentistry for 2 years.  Now is that a reasonable time limit with respect to the restraint on your ability to compete with the employer? The court is then going to closely examine what should be an appropriate temporal limit. 

Let me give you an example. If you’re saying that you cannot compete with me for 2 years what you’re saying is that look, even though you know my clients, you know everybody and you know my business in the 4 months that you dealt with, I cannot sustain my business for 2 years if you compete with me.  2 years is a long time.  In some ways that suggests that you are so vulnerable and your ability to keep your clients as your clients is so weak that you know even though that dentist has left you a year ago, you’re still worried that that dentist can take away your client.  Do you even deserve that business because you cannot compete in an open market?  You know there are all these considerations that the court will consider but essentially the court is determining whether the temporal limit that is imposed in the non-competition clause is reasonable and if it’s not reasonable it gets thrown out.  As an employer, you can put in 5 years / 10 years / lifetime or whatever you want but if the temporal limit is not reasonable your clause is not going to get enforced.

Then the 3rd thing that the court is considering is what specific activity or activities are you prohibiting the employee (the former employee) not to do.  What is it that you’re saying you should do / shall not do? One example could be that the clause may say you cannot open another dentistry practice, but what about dental hygienist practice? What if the dentist wants to just open a dental hygienist clinic and not provide services as a dentist but as a dental hygienist or just hire a dental hygienist to provide those services and run that business?  Is that covered in that non-competition clause? Is the dentistry practice the way it’s defined in the contract include dental hygienist practice? If it does, then the question is, is that reasonable? And the court may say no, that may not be reasonable.  This former employee was working as a dentist, never competed with a dental hygienist business and so it is unfair / unreasonable for you to limit the dental hygienist business.  What if the employee just wants to open a shop which sells dental equipment?  Is that in competition?  The court is looking at exactly what is it that the non-competition clause is saying—that the employee cannot do and is that clear; is that reasonable; and if it’s not then the whole non-competition clause gets thrown out.  This is how a court will examine a non-competition clause and then determine whether to enforce that clause or not.

Let’s look at a non-competition clause just for the sake of it.  You can see what kind of non-competition clauses are out there. You may have a similar or somewhat different clause.  There’s no standard language for this.  I just picked one to give you a sense of what a clause can look like.  Here’s a clause:

You will not, for a period of one year (the temporal limit here is one year) following the date of your termination or resignation (it covers termination/dismissal with cause without cause or resignation—in any circumstances), the time period is one year, what is it that you are not allowed to do as an employee—directly or indirectly (key words) in any manner whatsoever including without limitation either individually or in partnership or jointly or in conjunction with any other person or persons as principal, agent, shareholder, associate or in any other manner whatsoever carry on or start your own dentistry practice anywhere within a radius of 10 kilometers of the company’s premises;

And, or directly or indirectly in any manner whatsoever including without limitation work as an agent, associate, employee, independent contractor or in any other manner whatsoever in dentistry practice anywhere within a radius of 10 kilometers of the company’s premises.

This is a pretty strict clause.  It limits your ability to start your practice either directly or indirectly or even work as an agent, associate, employee or any kind of contractor of another dentistry.  Is that cause reasonable? The court is going to look at it and then look at it in minute detail and then determine whether the temporal limit is correct/ is reasonable; whether the geographical limit is reasonable and whether what activities are being prevented is that reasonable?

Another common part of this clause is this: “you acknowledge and agree that the company may apply for or have an injunction.”  Injunction is really that if you start a competing business along with an employer, can the employer literally go to court bring a motion for injunction and stop you right in your tracks? This clause is saying basically that if you do compete with us, we’re going to go bring an injunction against you and then stop you right there and then seek damages for and the legal costs and whatnot. 

Then it further goes on to say, “if any covenant or provision herein is determined to be void or unenforceable, in whole or in part, it shall not be deemed to effect or peril the validity of any of the other covenants or provisions, and such unenforceable or invalid portion shall be severable from the remainder of this agreement.”  This is a typical clause.  If the court finds one clause to be unenforceable the other clauses should continue to be enforceable. “Notwithstanding, the foregoing, if, in any judicial proceeding, any provision hereof is found to be so broad as to be unenforceable, it is hereby agreed that such provisions shall be interpreted to be only so broad as to be enforceable.”

This is trying to say that if the court finds that we put a very broad limit on the geographical scope then whatever interpretation will make it a bit narrower to make it enforceable. Let’s go with that interpretation.  It may not fly in court. But this is the language that you may find in the clause.  And then finally it says that, “you (the employee) acknowledge and agree that all restrictions contained herein are reasonable and valid and all defences to the strict enforcement thereof by the company are waived”.

This is a typical clause and there may be other variations of it. We lawyers spend a lot of time drafting these things because each and every word that is contained in this clause is subject to challenge/is subject to interpretation.  If you want a clause like that to be enforced you have to be very careful in how you draft it and to make sure that it is appropriately drafted so that it could be enforced in court.

In conclusion, what is it that you want remember? It is not easy to enforce non-competition clauses.  Why do we lawyers even put it in the employment contracts when we draft them? Or why do companies put them in those agreements? For a variety of reasons: (1) one reason is simply strategic. It is there as a threat.  You know that there is a clause in there that you’ve signed; it may sound ridiculously broad; It may sound unreasonable but you have signed it.  If you try to compete with the company, we will take you to court.  You will at least, at the end of the day, when you’re before the judge at a trial, you may succeed. But we will drag you into a court fight and you’ll have to spend all this money to prove your case.  That may be a sufficient threat for you to worry about the clause even though when you read it you realize that (based on my lecture) this clause would not have it’s day in court.  At the same time, there are practical implications of getting into a legal fight and you don’t want to be in that situation.

(2)  The other part, if you’re an employee, you want to keep this in mind, this is an important tip for you, when you’re negotiating your employment contract when you see a non-competition clause in your employment contract and you’re a smart guy, you have listened to my lecture and figured out that the clause is not going to be enforceable. Is it even worth it to negotiate with the employer because if it’s a badly drafted non-competition clause, it may be worth for you just to sign it because you know that it’s not going to get enforced. You understand that. If you raise this issue and you say to the employer I don’t want this non-competition clause or the non-competition clause is too broad, then the employer gets into that negotiation and fixes that clause or puts it in a way that is actually going to be enforceable. 

Now you’ve put yourself in a difficult position for the future because now you have not only negotiated a non-competition clause but by raising this issue you have put yourself in a position where the employer has drafted a clause that is actually going to be enforced against you. So you want to be careful even though you read the non-competition clause, you understand it, you’re comfortable that you’re willing to take a risk on this non-competition clause because it’s not going to be enforceable based on how it is drafted—is it even worth to negotiate. Think about that, think about your negotiation power within that deal. If you don’t have negotiation power then you want to be careful about the issues that you raise in an employment contract.

I hope this gives you a sense of what a non-competition clause is; what restrictive covenants are in general. Restrictive covenants are very, very important. Why? Because they limit your ability to do something even when you have left the employment. That’s why when you sign a contract, the most important thing you want to look at is restrictive covenants. What is it that the employer is telling you that you cannot do?  When you have left the employment, you’re not getting paid for that employment, you have to find another job and yet you are bound by an employment contract with a previous employer. Is that something that you want to be worried about? That is something to consider. So restrictive covenants in employment are important. We’ll talk more about this in our future lectures.  We will unpack each and every kind of restrictive covenant and then try to explain them to you in more detail.

Thank-you for watching.

Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

We are going to talk about restrictive covenants in an employment contract. In this lecture we will cover specifically the non-solicitation clauses. This is our 2^nd lecture on this topic.  We have previously posted a lecture which talks about restrictive covenants in general and then specifically deals with non-competition clauses.  If you haven’t watched that lecture it may be a good idea to watch that one 1^st; before you watch the non-solicitation because some of the fundamental concepts are covered in more detail in that lecture. We will talk about non-solicitation today and I will briefly talk about some of the basic concepts as well.

This lecture is not legal advice.  It is only for educational purposes.  If you have any specific questions regarding your own issues, you should contact a lawyer or a paralegal or the Law Society of Ontario for anything for a less

What is a restrictive covenant?  It is a clause in your employment contract that limits the employee’s ability to do something during or after employment.  Most of the time these clauses talk about what you cannot do after your employment ends—whether you resign or your employment is terminated. What you cannot do during your employment is generally covered by some of the fundamental principles of your employment relationship. For example, you have an obligation to work in the best interest of your employer and you have a duty of loyalty and fidelity towards your employer.  What are some of the common restrictive covenants? Non-competition: we have a lecture on that. Non-solicitation: we will talk about that today. Confidentiality; and if you have any intellectual property issues with respect to your employer, there may be some clauses with respect to your conduct regarding intellectual property.

What is a non-solicitation clause? Non-solicitation clause limits the employees ability to solicit any of the customers of the employer.  That is one main area often on solicitation. The 2nd main area is it restricts the employee’s ability to solicit any of the employees of your former employer.  Those are the 2 areas that are covered by on-solicitation clauses. 

In our previous lecture we had taken an example of a dentistry practice.  We’ll continue with that example today.  We had said that imagine you were an employee or a dentist; you work for a dentistry practice where there may be other dentists employed as well; you don’t own the business but you are just an employee of that dentistry practice. Now your employment is terminated or you have resigned and you have gone away. And you, for example, in your scenario you have started another business which is in competition with your former employer but you do have a non-solicitation agreement with your former employer. In that situation your non-solicitation agreement may limit your ability to solicit business from the clients of your previous employer or solicit any of the employees. Maybe you like the receptionist at the previous employer and you want to offer a better job and better salary—you may not be able to do that if you have a non-solicitation agreement with your former employer.  

Similarly, you may be familiar with a dental hygienist or other dentists that you want to attract to your business—you may not be allowed to do that.  In most of the cases with respect to securing or safeguarding the business interests of the employer, if a non solicitation clause is properly drafted that is usually sufficient to safeguard any of the business interest of the employer from a departing employee.

What are some of the underlying principles of non-solicitation? They are somewhat similar to the principles of non-competition. What you want to keep in mind is that courts prefer non-solicitation clauses over non-competition clauses.

As I said earlier, in most cases courts believe that if you’re a business and you want to protect your interests (business interests) that could be sufficiently achieved through non-solicitation clauses as opposed to a non-competition clause. A court will prefer a non-solicitation clause in an employment agreement and will enforce it if it is properly drafted and has the correct scope. A court will enforce the non-solicitation clause if it is properly drafted.  The standard that the court uses to determine whether non-solicitation clauses are appropriate is again reasonable standard. Reasonableness is a similar standard that was used in a review of non-competition clauses.  The same reasonable standard is used in the assessment of a non-solicitation clause.  The court will also look towards the wording of the clause to determine whether the wording is clear; there’s no ambiguity; the clause is not vague; it is narrow—it is narrow enough that it protects the interests of the business, yet allows the employee to earn his or her own living through the means that the employee wants to engage in.

What is the legal framework that the court adopts in reviewing and determining whether non-solicitation clauses are enforceable?  It’s similar to what’s in non-competition. The court will look at the geographic limit and closely review and determine whether the geographic limit is appropriate or not.  The court will look at the temporal limit.  We have discussed both of these factors in our previous lecture on non-competition.  You may want to check that lecture if you have not reviewed it. If the scope is too broad, the court will throw the clause out. If the temporal limit is too long or if there is no temporal limit – for example, the clause states that the non-solicitation will continue indefinitely, then the court will definitely throw that clause out and make it unenforceable.

It is important and is slightly different from non-competition—the action that you are not to do is solicitation. The clause should be limited to the act of solicitation. Solicitation is you reaching out to a customer of your previous employer. You reaching out to an employee of the previous employer—that is the solicitation part.  The act should be limited to non-solicitation. You as an employee should not be soliciting.  What that means is, if a previous client of your former employer finds out on his own or her own means that you have started your own business and wants to bring his or her business to you then that’s not solicitation. You are not doing anything to solicit that business.  In that case, accepting that business will be fine. Similarly, if another employee resigns and then happens to apply for a position in your organization, then that may not amount to solicitation. It’s the act of solicitation that is prohibited.  

The court will also closely monitor the scope of the limitation.  What exactly is it that you are not allowed to do?  For example, in case of dealing with previous customers, the clause may say that for a period of one year you cannot solicit “all of” or “any and all of” the customers of the former employer. But the company may be very large and you may have only dealt with a very small segment of the customers and the other customers you may not have dealt with them; you had no relation with them while you are employed; you did not know them directly as part of your employment, is it fair to limit your solicitation to all of the customers that you may have not even dealt with? Or, should it be limited to the customers that you have dealt with?  There could be another way of limiting this – that is to say that you have to not solicit the customers that you had dealt with personally over the last one year of your employment or over the last 2 years of employment. There is further restriction to the act of solicitation and the court may look closely into the language and determine what exactly is being prohibited with respect to non-solicitation and whether that prohibition is reasonable to safeguard the legitimate interest of the employer or the company.

Now let me give you a real example. I’ll take you to a case that was recently, in 2016, decided by the court. Part of it dealt with the non-solicitation. Let’s go there and then we will read it together so that it will give you a real sense of how the courts look into these non-solicitation clauses.  In this case there was a non-solicitation clause.  Let’s see how the court dealt with that.  There’s paragraph 18. By the way this is on Canlii website. You can you can use this name in to search in Canlii and you can find this case. Paragraph 18 says:

[18]    The covenant in the employment agreement upon which Donaldson relies reads as follows:

Mary agrees that in the event of termination or resignation that she will not solicit or accept business (and this is important and I will talk about it) from any corporate accounts or customers that are serviced by Uniglobe Donaldson Travel, directly, or indirectly.

It’s a pretty broad restriction.  It doesn’t even have a temporal limit. How has the court analyzed that? The court says:

[19]           It is noted that this covenant (hereinafter referred to as the “restrictive covenant”) contains neither a geographic nor a temporal restriction on Murphy’s obligation.(there’s no geographical limit, there’s no temporal limit and most likely on that basis the court will in itself throw out this clause and not make it enforceable) It is also noted that the obligation which the restrictive covenant purports to place on Murphy extends beyond an obligation not to solicit corporate accounts or customers that were and are serviced by Donaldson to include an obligation not to “accept business from” such accounts or customers.(when I mentioned that the obligation should be limited to not solicit not that not to accept business because business has a right to go wherever it wants to go.  If someone comes and brings business to you because they like you, because they like your business or because they like your customer service they are entitled to do that. They are not stuck they are not bound with your previous employer. If someone brings you business, you are allowed to accept it. It’s the solicitation part that you are not allowed.  When this clause says that Mary was not allowed to solicit or accept business that makes the clause unenforceable.)

It also purports to extend the obligation not to solicit or accept business, of any nature, from corporate accounts and customers of Donaldson generally, without restricting them to corporate accounts and customers which had been serviced by Murphy during the course of her employment with Donaldson or even which were corporate accounts or customers of Donaldson during her tenure.(You see how the court analyzes the specific clause to figure out exactly what is the nature of limitation and whether that limitation is reasonable or not and in this case the court found that the clause was not enforceable. This is the case name that I mentioned: Donaldson Travel Inc. v. Murphy Et Al, 2016 Onsc 740 (Canlii). You can put it in Canlii and you can get this whole case and read it for your interest.

What you want to remember is that the non-solicitation clauses will be enforceable if they are reasonably drafted and properly drafted. The court will enforce it. The court believes that non-solicitation clauses are sufficient in most of the cases for the employer to protect its interest and non-competition clause may not be necessary. Again, a word of caution from the previous lecture is that when you are an employee and when you are negotiating you should take extreme care in negotiating non-competition or non solicitation clauses. The 1st principle of negotiation is whether you have the leverage in that negotiation. If the employer is imposing an employment contract on you and your position is simply to take it or leave it, then obviously you don’t have any room to negotiate to begin with but again you want to read the clause carefully to see whether the clause is drafted properly or not.  If the clause is too broadly drafted or not properly drafted and you believe that the clause may not be enforced by the court then is it worth it for you to raise that issue and give the employer the opportunity to fix the clause so that it could be enforceable if challenged in court.  These are some of the things to consider and

I hope this gives you a sense of how the non-solicitation clauses work. We will talk about confidentiality and other clauses in our future lectures.

Thank-you for watching.

Show Notes:

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Lecture Slides:

Welcome everyone. This is Amer Mushtaq from YouCounsel.

When you are instituting a workplace investigation you have to select the right investigator for that particular issue.  It is an important step.  Choosing the right investigator is crucial to the conduct of a proper investigation.  Why is it important to choose the right investigator and what are some of the qualities of the right investigator?  We will talk about that in today’s lecture.  

We begin with our disclaimer that this course is not legal advice so if you have any specific questions regarding your issues you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

Hiring the right investigator is important. But why is that important? Let me give you some specific answers to that. 1. The investigator has a very high burden and I’ll explain what I mean by high burden; and 2. Secondly, there are significantly negative consequences of a badly conducted investigation.  I will explain that point more in the next slide.

I’m using the word investigator’s burden purposely.  I believe that yes, it is an investigator responsibility to conduct a proper investigation but it is also a burden.  The responsibility is so high that I believe the word “burden” is appropriate.  It needs to be discharged with respect to the investigation; to each employee that is being interviewed; with respect to witnesses; with respect to the accused; and with respect to the accuser.  Sometimes this burden is even higher than a judge’s burden in a court system.

And what do I mean by that? To understand that you need to understand that the investigation process is an inquisitorial process, not an adversarial process. There’s a difference between an inquisitorial process and adversarial process.  Let me explain to you what that difference is. 

Adversarial process: our courts and our judicial system works on an adversarial process system. What is meant by that, is that the judge makes a decision on a case based on competing evidence that is presented to that judge.  In an adversarial system there are 2 parties, one is the plaintiff, one is the defendant. The plaintiff hires his or her own lawyers, so does the defendant. They bring their own evidence to the trial and they present their own case. And what the judge will do is – the judge will look at the evidence of both parties and then decide which party is more compelling—which case is more compelling and may the best case win.  In a court system / in a judicial system the judge has no responsibility to conduct his or her own investigation. 

There may be questions in a judge’s mind that may require further investigation but that’s not what the role of the judge is. It’s an adversarial system.  In an adversarial judicial system, we as a society believe that when both parties (opposing parties) are allowed to present their case to the best of their abilities that there is a level playing field for both parties.  They can both present their best foot forward.  The truth will invariably come out because of the presentation of cases.  The best case will—when the truth will come out. That’s our concept. 

In an adversarial system the judge is not conducting any investigations of the judge’s own will.  It is based upon whatever is presented.  In a way a judge’s job is relatively simpler because whatever evidence is presented before the judge, the judge has to choose between the competing evidence before him.  Whichever one makes sense, whichever one is more compelling the judge rules in that party’s favor.

In an inquisitorial process the investigator has the burden to search for the truth.  When you hire an investigator there are no competing versions.  The competing versions are to be determined by the investigator himself.  The investigator will talk to the accused; will talk to the accuser; will talk to the witnesses; will look at the documentary evidence and then determine what the truth is.  The role of the investigator is much higher.  The burden is much higher in an investigative process because it is the investigator’s job to search for the truth.   In an adversarial process the judge will invariably rule in one party’s favor—either the plaintiff will win or the defendant will win.  One of the 2 parties has to win based on the competing evidence they are provided. 

In an inquisitorial process it is possible in some cases where the investigator may conclude (having reviewed all of the evidence, having spoken with all of the witnesses) that there is no factual determination of who did what in terms of being wrong.  Who committed an offense; who committed harassment; who committed a mistake that warrants some sort of punishment—the evidence may lead to lack of conclusion.  It is possible in an investigative process whereas in an adversarial process (in a civil court system) there’s always one party that is going to win and one party that is going to lose.  In the inquisitorial process the entire burden comes on the investigation. Yes, the investigator is going to ask the witnesses to provide their evidence and what not but at the end of the day it is the investigator’s job to look for more evidence. If the investigator needs to search for more then, the investigator needs to take the investigation in the direction that it ought to go. All of these decisions lie with the investigator to conduct a proper and thorough investigation.

What are some of the consequences of a badly conducted investigation? The major consequences are legal consequences.  A badly conducted investigation will not hold when challenged in a court.  If the matter goes to court and in that court process the investigation that was conducted is also examined by the court system and if it is not properly conducted, it is not legally defensible.  Then it may end up harming the company or the employer more than having not conducted an investigation.  A badly conducted investigation has legal consequences.

It has, obviously, economic consequences. It costs money and resources to conduct a workplace investigation.  If you conduct a bad investigation or you hire an incorrect investigator then the investigation you have conducted may not be proper—you have lost your time and resources for that.  Obviously, there are workplace consequences if the investigation is conducted badly.  That means that the truth has not been properly determined; that means that proper legal actions may not be taken; that means the wrong party may have been disciplined—all those consequences flow from a bad investigation.  Therefore, rather than repairing the workplace, rather than repairing the relations, the investigation has now harmed the workplace process.

With that in mind with the importance of hiring a good investigator (a proper investigator), what are some of the essential qualities of an investigator? These are essential qualities and I believe that the investigator has to have these qualities. (1) The prime (the most important) one is neutrality. An investigator must be neutral and I’ll explain this in more detail. (2) Secondly. Competence—the investigator must be competent in conducting an investigation. (3) The investigator should be able to do his or her job efficiently.  

(1)  Let’s talk about neutrality. 1st thing about neutrality—which obviously makes sense, is that there should not be any conflict of interest for the investigator. This is a scenario that often may be present when the company is hiring an internal investigator. When a subordinate employee has made an accusation of some sort against the manager it is obvious that the manager should not be the one conducting that investigation or should play any significant role in that investigation because the manager has a conflict of interest.  Sometimes the manager’s manager (the manager’s own boss) may have an indirect conflict of interest because the investigator’s boss may have some interest in protecting his or her own manager as opposed to the subordinate worker who has filed a complaint.

A conflict of interest is an important factor and the investigator (1) should not have any conflict of interest either actual or perceived. There should not be any conflict of interest on part of the investigator to make sure that the investigator is neutral and unbiased. (2) Secondly, there shouldn’t be any circumstances that should lead/cause undue influence on the investigators ability to conduct investigation.  One of the things that may occur in places where investigator and the parties who will be investigated or the accused or the accuser know each other / work in the same company even though they may not know each other directly, there may be some undue influence.  We know that workplaces have their own dynamics. They have their own cliques; they have their own relationships which do play a role in terms of various decision-making that occurs within the workplace environment.

That may all be fine with respect to day-to-day issues.  When it comes to an investigation there should not be any undue influence on the investigator. Undue influence could be in subtle ways.  For example, a human resources person who may be conducting an investigation may have friendship with the manager who has some interest in the outcome of the investigation. That relationship (social relationship) may cause some undue influence with respect to the conduct of the investigation.  It is important to ensure that there is no undue influence on the investigator to conduct an investigation in an impartial and unbiased manner. (3) Thirdly there should not be any prejudice or preconceived judgments about what may have happened with respect to the issues that are being investigated. I think that part is again very important when internal investigations are conducted by employees—either by employees from human resources or other employees within the organization.

I will explain this to you by way of an example. Many years ago I used to be a naval officer. The way it works in the Navy is that if a sailor is charged with an infraction – for that infraction the judge is usually the commanding officer who listens to the charge.  The regulating officer presents the charge; acts as a prosecutor; the sailor’s officer (departmental officer) becomes the defender.  Then the charge is presented and the commanding officer makes a decision.  On a small ship of 50 to 60 people, everyone knows everybody else.  When a sailor is charged, it is obvious that, that sailor’s background, his social relations, his interactions, his general impression in the workplace is known to everyone. I remember in one case I was defending one of my sailor’s who was not very well liked within the ship’s company.  He was socially awkward. People didn’t like him he was not very presentable. His social demeanor was not very well liked. Nothing to do with his legal defences but he was just not liked—including myself.  Even though he was in my department I did not like him. 

I had to defend that sailor when the charge was presented and the sailor had to step forward.  What I did at that time: I presented a different sailor to come and step forward even though my sailor was being called.  When my sailor’s name was called the sailor who actually stepped forward was a different sailor.  This was a sailor with the same rank but he was very well liked. He was very well respected within the ship’s company.  He stepped forward and my commanding officer was obviously puzzled. He looked at me and he asked, why is this sailor here? I believe the charges are against a different sailor.  I then told my commanding officer: I have brought the sailor just to make a point. When you are considering the charge against my sailor, I want you to keep in mind this sailor who is a good sailor when you are awarding the punishment because when you think of my sailor he is so disliked in the ship’s company that I worry that when awarding punishment it may be disproportionate to the charge that he is being charged for (with the infraction that he has committed) and so I just wanted you to think about this nice sailor rather than my sailor when you’re awarding the punishment. 

The commanding officer smiled and he said: “I take your point”. He said, that look if you had not made this point, I suspect I may have been a bit harsher on your sailor because I agree that no one likes him. Prejudices come in very subtle forms—especially with people that we work with or the people we know—we know of their impressions through work—whether they’re favorable or unfavorable.  These kind of issues about neutrality and conducting and unbiased investigation become crucial when the investigator is an internal investigator who has knowledge of the parties or may have knowledge of the parties through other people.

(2) Competence. Obviously the investigator needs to be competent. One of the things that the investigator has to have is a good understanding of law. If the investigator does not understand the law there will be difficulty in conducting a true fact finding mission. I’ll explain that further down.  The investigator needs to understand policies and procedures. If there are workplace policies that are at play with respect to that investigation, an investigator needs to have a very good understanding of those policies before he or she conducts that investigation. Now talking about understanding of law—there is an important point that I want to make and that is that oftentimes fact finding is driven by underlying legal issues.  Even when you are trying to find some facts the way you ask questions; the direction of your inquiry; how deep do you go with respect to asking questions is often informed by the legal issues that you’re grappling with.

Let me explain that by giving you an example. Let’s say that you’re investigating a complaint from an employee who says that he was discriminated because of his disability—the employer failed to accommodate his disability issue.  The disability issue he says is that he had a back pain problem for the last several weeks and the employer still asked him to perform certain tasks that he should not have done because of his backache. When you are conducting an investigation to determine whether there was a breach of the Human Rights Code, whether there was discrimination or not, you obviously, on the basis of common sense will 1st of all find out whether that employee indeed had back pain or not. You look towards medical evidence or other evidence to confirm whether that individual had back pain. 

Then the 2nd inquiry on the basis of common sense you may ask is whether the employee asked for any accommodation. Whether the employee went to his manager or went to the human resources and asked them that look I have a back pain can you not assign me those duties.  Let’s say the answer is no.  The employee says no, I never went to my manager or I never went to human resources to ask for any accommodation.  Based on common sense, your inquiry may stop right there because common sense will say: well he never asked for it how is he going to get the accommodation. Make sense? You want accommodation on the basis of disability you have to go ask for it.  It will not be divine on the employer to provide you that accommodation unless you ask for it. 

If you understand the law, your inquiry will not stop there because you would know that at the next level of inquiry you need to determine whether regardless of the employee asking for accommodation or not whether the employer had any knowledge that the employee had disability issues or back issues. If the employer had some knowledge then the law imposes a procedural obligation on the employer to inquire whether the employee may need some accommodation and to follow it. That understanding or that factual inquiry is now driven by your understanding of the underlying law of discrimination. Absent that understanding your inquiry may not go deeper; your inquiry may not go in the direction that an appropriate inquiry should go.

Just to give you a clear understanding, there is actually a case in our jurisprudence on those facts.  An employee who had worked for a car dealership or something and he had this back pain issues and he never asked his manager to accommodate him because of his back pain.  He was clearly seen leaning by the walls most of the day because of his back pain issues.  He was obviously seen in pain and his manager actually acknowledged that he understood the employee to be suffering from some sort of back pain but because the employee never asked for an accommodation he never took any initiative in providing any accommodation. 

The important point is that fact finding oftentimes is driven by underlying issues.  If the investigator is unclear about the law; does not have the full understanding of the law, even though the investigator’s mandate may be limited to finding only the facts—the facts that the investigator may uncover may not be complete.  It is an important thing and I kind of find this to be an issue of competence that the investigator needs to have the understanding of law and the underlying policies to properly conduct an investigation.

(3) With respect to efficiency: An investigator needs to conduct timely investigation. When you hire an investigator you need to make sure that the investigator has sufficient time to allocate towards an investigation because it is important both legally as well as otherwise that the investigation is conducted in a timely manner. Part of efficiency is the investigator’s ability to dig deeper when warranted.  When investigator is asking questions then based on the answers provided, based on the evidence that is presented, sometimes the evidence leads to certain other issues that may need to be investigated further.  The investigator needs to figure out based on its mandate—based on the issues at hand, does it make sense to dig deeper or not.  This is sort of a judgment call and again the investigator needs to be able to do that efficiently.  Similarly, the investigator needs to have the ability to avoid irrelevant issues that may arise as part of the investigation.

I can give you an example. In one of the investigations that I had conducted some time ago where when I was investigating this person who had filed a harassment complaint.  As part of the investigation she raised this issue in my examination of her that she had faced similar harassment from the same employee some 10 years ago.  There is an obvious question now on part of the investigator whether the issue that she’s raising of 10 years ago needs to be probed. If it needs to be probed then to what extent, how deep do you need to go in investigating that issue. These are issues, these are judgment calls that the investigator makes at every step of their investigation.  In which direction the interview needs to go; in which direction the fact finding mission needs to go; what kind of pitfalls to avoid; what kind of issues to avoid; what kind of issues to focus on; what remains relevant based on the mandate that is given to the investigator. Efficiency in conducting an investigation is also one of the essential qualities of an investigator.

To sum it up, selection of the right investigator is one of the most crucial steps in my view. A bad investigator can cause more harm than good.  It is very important to select the right investigator for your investigation. Hopefully, this gives you a good sense of how to hire a good investigator for your investigation and we’ll talk more about these issues in our following lectures.

Thank-you for watching.

Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

Today we will talk briefly about workplace investigations. What is a workplace investigation; what is its purpose; what are some of the goals; how is a workplace investigation instituted; and what are some of the steps taken in a workplace investigation; so you can get a basic understanding of workplace investigation whether you are an employer or an employee who is involved in an investigation.

We begin with our usual disclaimer that this lecture is not legal advice. If you have any specific questions, you should contact a lawyer or a paralegal or the Law Society of Ontario for any referrals.

Workplace investigation is to investigate a workplace dispute.  That’s one of the common reasons.  There could be an allegation of improper conduct.  For example, harassment complaint by an employee against a coworker or a manager or supervisor or a discrimination complaint or a complaint of any other conduct that is considered to be improper—you may, as an employer, need to investigate that.  There may be a workplace accident or an injury that requires an investigation and that could be a reason.  Or something or another occurrence/something else that may have happened in the workplace that warrants that the employer should investigate that particular occurrence. 

What is the purpose of an investigation? The fundamental purpose of workplace investigation is fact finding—to figure out exactly what happened—that is the most basic and the most essential purpose of a workplace investigation.  Who said what to whom; what was the incident; how did it happen; who were the parties involved; essentially all the important elements of that specific instance or instances and to figure out all the facts that are relevant to that particular issue.  Fact finding is one of the most essential and sometimes the only purpose of an investigation. The investigation could be much broader than just a fact finding mission but essentially it has to be a fact finding mission.  

Other purposes could be to identify breaches of policies and procedures.  If the employer has any policies relating to that instance, then the employer may want to know whether a specific policy or policies or procedures were breached.  For example, if it’s a workplace incident involving the use of specific machinery—were there any policies relating to the operation of that machinery and whether the policies were followed or, if not, whether the procedures were breached.  If so, who did that?  Some of the purposes of the workplace investigation could be to figure that out.  Also one of the purposes of investigation could be to figure out any breaches of law.  This could be different from the policies and procedures because policies and procedures may be limited to that specific employer and may not necessarily be a legal obligation imposed by law. 

Another purpose of workplace investigation could be to figure out breaches of law—whether there was discrimination contrary to the Human Rights Code; was there any harassment contrary to the Occupational Health and Safety Act—whether there were any other breaches of law; whether the alleged act was a criminal act and warrants any criminal investigation.  All of these things may be part of the investigation process.  Another purpose of investigation could be to obtain recommendations from the investigator so that any future issues of similar nature could be avoided.  The employer may ask the investigator to provide a legal opinion on the matter/s; the employer can ask the investigator to provide any recommendations—whether any legal action is warranted against any of the parties who are involved in that issue. 

What is the obligation to investigate?  The investigation could be done in one of the two ways: 1. Investigation is done under Occupational Health and Safety Act in Ontario.  There are similar legislations in other provinces.  I’m not sure whether other provinces mandate a workplace investigation but in Ontario under Occupational Health and Safety Act, the Act requires (it imposes a mandatory obligation on) the employer to conduct a workplace investigation when there are issues related to harassment.  Here’s the Occupational Health and Safety Act.

Section 32.07(1) “To protect a worker from workplace harassment an employer shall ensure that,

 an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances;

It is important to recognize that the language that is used is to conduct an investigation. Number one, it’s a mandatory obligation to conduct investigations. And number two, investigation has to be conducted into incidents and complaints.  Sometimes there could be a potential workplace harassment but there is no complaint actually filed with the employer.  The employer becomes aware of an incident which may be considered a workplace harassment—the obligation to investigate is still on the employer to conduct a workplace investigation.  Obviously, when there is a complaint, then the employer has an obligation to conduct a workplace investigation. The other section that is worth reading here with respect to the investigation is that,

• The worker who has allegedly experienced workplace harassment and the alleged harassers, (both parties) if he or she is a worker of the employer are informed in writing of the results of the investigation and if any corrective action that has been taken or that will be taken as a result of the investigation.

The person who made the complaint or the person who has experienced workplace harassment is entitled to know what is the conclusion of the investigation and secondly the person who has been accused is also entitled to know what is the outcome of the investigation and this needs to be done in writing.  The Occupational Health and Safety Act mandates the employer to conduct an investigation with respect to workplace harassment issues.

Otherwise the employer has its own discretion to conduct an investigation.  If it’s not a harassment scenario, in any other circumstance, the employer may decide that a workplace investigation is appropriate in the circumstances and may choose to conduct an investigation. 

An example of such an investigation could be an investigation into any discrimination or potential discrimination issue/s.  The Ontario Human Rights Code does not mandate an investigation.  The employer may choose to conduct an investigation to figure out whether there was any discrimination based on the facts of the case at hand and to take appropriate action. 

Aside from the Occupational Health and Safety Act there is no obligation but based on the specific circumstances of the issue the employer may choose to investigate.  Just so you know workplace investigations have now become a common thing—primarily because employers want to make sure that they understand what has happened and to protect other employees and the employer itself from any legal actions that may flow from that specific instance.

What are some of the goals of workplace investigation? It is tied to the purpose of the investigation. One of the goals of the investigation is to figure out what legal action, if any, needs to be taken based upon the issues that have come to light in that specific investigation, and, if there are any remedies that need to be obtained with respect to that investigation.

Another goal is to make sure that the workplace is repaired if there is a breach in relationship between coworkers and employees, then that is repaired.  You create a work environment which is safer and cordial. And make sure that if there are issues with any policies—either with respect to the policy itself or with respect to any training or any other facts relating to workplace policies—then that that is looked after. Obviously, the employer wants to make sure that the workplace is more productive and safe for all of its workers.  Finally, the employer also wants to make sure that similar issues do not arise in the future.

Now how is a workplace investigation instituted? First of all as I said, the employer may become aware of the issues; knowledge of issue; dispute or the occurrence. Then the employer because of that knowledge starts the process of deciding whether to conduct an investigation or not.  Or the employer may have seen specific complaints from an employee with respect to an issue and that may trigger the inquiry of whether a workplace investigation needs to be conducted. 

Once that knowledge of the issue is made aware, then the employer conducts a preliminary review—usually done by human resources department, if the employer is big enough to have a dedicated human resources department or someone who is in charge of human resource issues will conduct a preliminary review and decide whether an investigation is warranted in the 1st place or not. If it’s an Occupational Health and Safety Act issue (obviously for harassment issues) the investigation is mandatory.  For other matters, the preliminary review will determine whether to conduct an investigation or not. 

Once the decision is made to conduct an investigation the next step is who will conduct the investigation. Whether it’s going to be an internal person / an internal employee of the organization who will conduct the investigation or whether it’s going to be someone outside of the organization / an external person who will conduct the investigation. 

If it’s an internal person, then the employer has to decide who is the appropriate employee to conduct investigation; whether this person could be a human resource person; whether this could be a manager ; a supervisor or another competent employee who has no conflict of interest.  There are other factors that an employer needs to consider to make sure that an appropriate employee is assigned for the task to investigate.  We will provide separate lectures on selecting an appropriate investigator and how do you figure out who is the right person to investigate based upon the specific circumstances of an investigation. 

If the employer decides that it is going to be done by an external investigation, one of the factors that the employer may consider is whether the investigation needs to do be conducted by a lawyer or a non-lawyer—whether it could be someone who can simply conduct a fact finding mission without having a clear or deeper understanding of the legal issues involved then a non-lawyer may be suitable. Again with respect to the selection of an appropriate investigator we will provide a separate lecture and will cover this topic in more detail.

Now how is an investigation conducted?  Some of the common steps in a workplace investigation are as follows:

First of all an investigator is assigned whether internal or external investigator; 2^nd then the investigator is provided with the mandate. What is the scope of the investigation? Is it only fact finding or investigator has to dig deeper into related matters?  For example, breaches of policies and breaches of law—whether the investigator is required to provide an opinion on policies and procedures, on law or any other recommendations that the employer may be seeking from the investigator.  3^rd The employer may also prescribe a timeline for the conduct of the investigation.  Usually the expectation is that the investigations are commenced and completed in a reasonable time period.  Once that is done, then the role of investigator begins.  Investigator starts gathering facts and evidence. In that process the investigator gathers all documentary evidence that may be relevant to the understanding of the issues that have occurred.  The investigator may get viva voce evidence and the investigator will most likely conduct interviews from a number of witnesses to figure out what has truly transpired in that specific instance.  Once all of that is complete, the investigator will review all of the evidence and all of the facts and then provide a report to the employer regarding the outcome of the investigation.

What is it that you want to keep in mind with respect to workplace investigation? That a properly conducted workplace investigation is usually very helpful to the employer in understanding what has happened, what caused the issues that became the reason for the investigation, how to maintain a safe and productive workplace environment and to make sure that future instances of similar nature (similar disruptions) do not occur at the workplace.

In our future lectures we will talk more about workplace investigation and some of the specific topics, for example, choosing an appropriate investigator; how to conduct a fair and unbiased investigation.  We will cover those topics in our future lectures.  Thank-you for watching this and hopefully this gives you a basic understanding of what is a workplace investigation. Thank you.

Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

Any time when someone goes to court and commences a civil action there is some sort of unfairness wrong or harm that underlies that court action.  There is some unfairness for which that person is seeking a remedy from the court against certain other parties.  How does an unfairness or wrong translate into a court action in Ontario?—that is something that we’ll talk about today so you can have a broader understanding of how any wrongdoing can turn into a court action.

We begin with our usual disclaimer that this lecture is only for educational purposes and should not be construed as legal advice. If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or contact the Law Society of Ontario for a referral to a lawyer or paralegal.

1st thing that you want to keep in mind is that not every wrong is actionable; not for every unfairness that you may face are you able to go to court—that is not possible.

Let me explain that concept by way of an example.  Imagine a scenario where a parent promises a child that if you get straight A’s in your exams I’ll buy you an XBox.  The child agrees to it and the child gets straight A’s.  Does that become a legally binding contract? Under the principles of a legally binding contract there has to be an offer and you’re making that offer that if you get straight A’s; there has to be an acceptance and the other party (the child) says yes I will get straight A’s.  Then the promise is that if you get straight A’s you will get an XBox.  That’s the promise—there is an offer; there’s a consideration and there is an acceptance on part of both parties.

On general principles of contract law this will be considered a contract but there is that particular promise in this situation: does that become a contract that is enforceable in courts (in our Ontario Courts or in Canadian courts)?  The answer is no.

Let me give you another example.  In this example, a similar situation, but now the parent is required to provide the child with the necessities of life and that may be something that may be actionable.  Society at large may take legal action against a parent who is not or who is failing to provide necessities of life to a child. What does this example or the 2 examples indicate? What it tells you is that boundaries of law are determined by society.  We as a society decide what kind of issues, what kind of matters will form part of the domain of law and which kind of issues will not form part of the domain of law.  We as a society (in a democratic society) decide this and whatever we agree to—even the criminal code. That’s a decision of our society to say what kind of acts will be considered criminal in our society and will be punishable by criminal courts. 

Similarly, there are social wrongs or other similar wrongs that we as a society believe that they should be actionable in our civil courts and that’s what we have decided and that’s actionable.  Not every single wrong that we face in our lives is actionable—for which we  go to court.  It’s a simple principle that we all understand.  It is worth repeating so that we have clarity on how any unfairness translates into an actionable wrong and when we say actionable wrong, we mean a wrong that can be taken to court.

How does an unfairness of any kind turn into an actionable wrong for our court system?  There are generally 3 ways. 1st one is that there is a breach of a statutory obligation.  There is some obligation on part of somebody to do something or not to do something under a specific statute in Canada either in Ontario or other provincial statutes or a federal statute.  That person (that party) has failed to abide by the obligations under the statute which gives rise to your right to take the party to court as long as the statute provides for that.

The 2nd common way to make an unfairness to an actionable wrong is a breach of contract.  We all kind of understand this concept that if there is a contract between parties and one party fails to perform the duties of the contract, the other party can take legal action against the first party.

The 3rd way you can take someone to court is under tort and I will explain the concept of tort further in the next few slides. Let’s take each of these examples.

1^st  We know that statutes are created by legislators; even the parliament enacts statutes; we know from our knowledge of how our society works that our parliamentarians / legislators sit down and decide on an important issue. They create a Bill and then the bill becomes some sort of statute in our province or in Canada.

One of the places where you can find all Canadian statutes is called Canlii. This is a website which is nonprofit and you can access all of Canadian statutes from this website: canlii.org. That’s the website.  If you go to this website, for example, if you want to look at all of the Canadian federal statutes you can go here and you see that statutes and regulations are listed here.  You can access the statues alphabetically.  Here you can see the many federal statutes from Access to Information Act to Authority of the Federal District Commission to Have Acquired Certain Land—all kinds of issues, Anti Terrorism Act, Apprentice Loans Act—I’ve never before heard of that Act.  All kinds of issues are dealt with in the statutes and you can find that information free on canlii or other websites that are available in Canada.  

Underneath statutes are regulations—regulations give a bit more flexibility in terms of how a particular statute needs to be interpreted and how it needs to be implemented. Regulations are bit more broader and a bit more practical.  Statute provides an overall direction but combine these to provide for the obligations within that statute. 

A common example of a statute which gives rise to certain duties is the Human Rights Code.  Many of you may not know but there is no civil right to sue someone for discrimination.  The right arises from a specific statute in Ontario—it’s the Human Rights Code and in federal jurisdiction is Canada Canadian Human Rights Act.  That particular statute provides that discrimination is prohibited on certain grounds.  It lays out specific grounds because discrimination is a very broad term.  It could happen in so many parts of life.  There are specific grounds for example: race, religion, sexual orientation, disability and whatnot.  There are specific grounds laid out so you can only sue someone for discrimination on the basis of those grounds. 

Then there are certain circumstances in which discrimination or certain relationships within which discrimination act can be brought forward.  Those are defined in the Act in Ontario Human Rights Code.  Then the Act also indicates that if it’s a discrimination matter then you cannot really go to court but you have to go to the Human Rights Tribunal.  The power to commence an action arises from the specific legislation. That’s an example of where an unfairness—in this case discrimination becomes an actionable wrong through the power that is vested through this particular statute.  That’s an example of how you can approach the courts or tribunals through a breach of duty under statute.

2^nd is contract.  We know generally that contract between parties provides the duties that each party must perform.  You have an obligation to perform the contract based on the terms of the contract.  The liability in terms of contracts arises from the breach of contract—one party fails to do what it is required to do under the contract, the other party can take legal action.

3^rd is tort—which is a fascinating area of law.  I find it extremely fascinating because it talks with a lot of social philosophical dimensions of how we find liability and legal action.  It’s a fascinating area.  What is not covered in contract may be covered in torts.

One of the things that you want to know is that tort duty is imposed by law / society.  It’s not your choice.  It is not a situation where you are agreeing with another party to do something or not to do something.  This duty is automatically imposed by society and what does the tort do? The liability in tort arises from the cause—from the injury or harm that has been caused by one party.  It’s an injury based / harm based kind of liability that is imposed by society in general.  

Common example of that is motor vehicle accident.  You and I do not form specific contracts with other drivers on the road that we will drive carefully.  This duty has been imposed on us by society that when we’re driving on roads we have to be careful and not negligent in how we drive.  If we cause an accident and cause an injury or harm to someone else, then that person has the ability to take us to court based on the principles of tort.  It’s not a contractual principle but tort. 

Similarly, product liability is again a tortious act.  You buy a car.  The brakes were manufactured improperly and it causes you into an accident.  Then you have an actionable wrong against the manufacturer of that particular vehicle. These and there are many more examples.  Professional liability is another example where the negligence of your physician or your accountant or your lawyer can give rise to an actionable wrong that you can take against that individual. 

Tort is a very broad category but generally speaking these are some of the examples that I can give you.  In our ensuing lectures I’ll actually go over all kinds of different torts and explain how those torts become actionable wrongs and what are the grounds to bring a court action for those torts.

Now contract and torts have some similarities—what are those? Both deal with a breach of duty. Whether duties are imposed by law or duties are imposed by agreement of parties but they’re both dealing with a breach of duty and both are providing certain damages once the judgment is made (the court awards certain damages to one party or another).

What are some of the differences? One difference is consent.  When a contract is entered between parties, and the parties knowingly and without coercion agree to something—it’s an agreement of the parties.  As I said, in tort there is no consent required from you or for me or from anyone else.  This is a duty imposed by law. This is not something that we sign into by choice.  We being members of society automatically accept our duty in tort.  

Similarly, with respect to damages—the concept of awarding damages in the contract law is, generally, to put the party that has been wronged in a position if the contract was not breached.  The court puts itself in a position where if there was no breach where would this party land at the end of contract and try to put their party into that position.

A common example could be that if the contract was performed properly you would have made $100,000.00 at the end of the contract. Then the court will put you in that position and say you’re entitled to $100,000.00.  That’s a very broad, simplistic example.  Putting the party in the position that it would have been in if the contract was performed.  

Torts is based on compensation for the harm or injury—whatever injury has occurred the court is trying to provide compensation for that specific harm or injury.  Underlying concepts of award of damages for contract and tort are different and so they will give rise to different amount of damages in each case. And one more thing you want to keep in mind is that punitive damages are generally not awarded in breach of contract.  They may be, but generally not.

Punitive damages are awarded in tort cases.  We have all heard these stories of cases in the US against McDonnell or some other large corporation where they have committed a tort and courts have awarded millions of dollars in punitive damages. That’s where you can imagine that in tortious cases punitive damages could be awarded.

What is it that you want to take away from this lecture?

It is that whatever kind of unfairness that you want to take into court has to fit into a specific cause of action or causes of action. You cannot just simply stand up in court and say, “This person does this thing unfair to me I want you to give me X remedy or X damages.  

You have to figure out that in your specific set of facts what is the cause of action.  Is it a tort of negligence; is it a breach of contract; is it a breach of a specific statute—that is what you have to figure out.  What is the cause of action that is going to allow the court to give you the remedy that you are seeking? This is where you go and seek legal advice from lawyers, who because of their experience and knowledge have a better understanding of different causes of action or different statutes.  They can channel your specific facts, i.e., the wrong that has been done to you into a specific cause of action that the court understands and the court can provide you the remedy.  That’s why this concept of understanding how any unfairness turns into a specific cause of action or an actionable wrong is important for someone who wants to understand the legal process in general are commands a court action in certain specific circumstances of that person’s case. 

Generally speaking, the liability or actionable wrong can arise because of a breach of statute, contract or tort or a combination of these factors.  And you can sue for that in a court of law. 

In our future lectures I will try to go dig deeper into these concepts we will talk about different kinds of torts which are fascinating and you’ll learn about different kinds of torts—negligence and intentional torts, about battery and assault, false imprisonment and debtinue and conversion all these very very interesting topics will cover those and but will explain to you in practical terms that what kind of set of facts will allow you to seek remedy under those specific talks.

Thank-you for watching this basic lecture that will hopefully help you understand how an unfairness turns into an actionable wrong in Ontario Courts and generally in the courts of Canada.

Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

Today we’ll talk about some basic types of torts so you can understand the fundamental concepts behind torts and understand some of the common types of torts that are available in Canada. This is sort of the tort law 101 in terms of understanding different types of torts. 

We will begin with our disclaimer that this course is not legal advice.  It’s only for educational purposes.  If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

What is a tort?  It comes from the Latin word “Tortum”, which simply means wrong or injustice. What does a tort do? It imposes a duty of care which is imposed by law. It is not by choice—you and I don’t need to sign anything to be held liable under tort. Just by virtue of living in a society we are all bound by different torts, which is why tort is important—because it is different from the law of contract where you have to actually sign into a contract to be liable under the contract.

The 2nd thing you want to keep in mind is that the concept / or fundamental reason for tort law is to provide compensation for the loss or injury to the harmed person. The fundamental concept is not to punish the wrongdoer, although, punitive damages are indeed awarded in tort law. Just so that we’re clear about the importance of tort law, one of the things that you want to keep in mind is that tort law covers many day to day circumstances. Our various social, technological, economic circumstances are covered by tort law and that’s why a better understanding of tort law is important.

Some of the examples of tort law are product liability: any time you manufacture a product or you sell a product you may be held liable if there are injuries or harm caused by that product.  You know we hear all kinds of examples where you go to a restaurant and you have consumed food which had bacteria or some other problems and it caused you illness and so the restaurant owners may be held liable for the food.

Similarly, we buy all kinds of products in our day to day life.  There may be liabilities on the seller or on the manufacturer of those products. They’re all covered under tort law. We deal with all kinds of professionals in our lives: lawyers, doctors, accountants, plumbers, electricians and they have a liability with respect to the duties that they perform in your circumstances. Occupiers liability: we occupy all kinds of spaces—our motel / hotel, land (agricultural land) all kinds of things—there could be occupiers liability arising from that.  There is vicarious liability: which is being liable for the actions of someone else. All of these various aspects of our day to day lives are covered by tort law.

What are some of the common types of torts? One kind is called intentional torts; torts of negligence; strict liability tort and economic tort.  Let’s briefly talk about these torts. Intentional torts: are some of the common torts e.g., battery, assault, false imprisonment, sexual harassment, trespass, conversion, detinue, and so on.

We will go over these torts individually in separate lectures and I’ll explain to you what are the common—the basic elements of each tort. What is it that you need to establish in that tort? What are some of the defences with respect to that tort.  Over here I just want to let you know that these torts exist. 

Battery and assault are often mixed.  People consider assault as battery but battery is slightly different.  Battery is interfering with someone’s bodily integrity.  Touching someone without permission could constitute battery.  A common example is hockey players.  When hockey players come into contact with each other during the game of hockey, they’re actually committing the tort of battery.  The reason why there is no tort of battery against hockey players or between hockey players is because there is a defense of consent.  Under the rules of hockey, the contact is permitted.  When you play hockey, you are consenting that the other players may come in contact with you bodily.  That’s why even though battery is committed, the person is not held liable—because you have provided consent for that. 

Similarly, sexual harassment is also considered a crime.  The person may face consequences under the Criminal Code of Canada in addition to a civil action in sexual harassment. 

Trespass is another one. If someone arrives on your property without your permission that person may be committing an act of trespass and you may have remedies in civil law, in addition to other options to seek remedies under the tort of trespass. 

Conversion is using someone else’s property without permission.  All of these are intentional torts because they are intentional acts and they have specific requirements for you to show that the intentional tort has been committed and that there is no valid defense by the person who has committed that. 

Another example of battery is when a surgeon operates on a person and conducts surgery, that is an act of battery.  And that’s why as you and I know that prior to any surgery you sign a consent form where you allow the surgeon to conduct that surgery.  If it is without permission then that act of surgery will constitute battery.

Negligence—is a very broad category of torts.  It covers many aspects of our day to day life.  Essentially, what negligence does is that it imposes a duty of care on all of us and the duty of care is to act reasonably so others are not harmed.  There are 2 aspects of it: one is that there is a duty of care and then the 2nd is that there is a standard of care.  What kind of standard of care that you and I need to follow?  In legal terms it’s called a reasonable person’s standard.  What does that mean?  

In very simple terms, what it means is “what would a reasonable person have done in the similar circumstances?”  Would the person have done the same thing?  Would the reasonable person have done the same thing as you have done?  Then, obviously you have met the standard of care and you may not be held liable.  If you acted in a way that a reasonable person would not act, then you may be held liable as long as there is a duty of care found in the specific circumstances of your case/  

Then this reasonable person standard gets more nuanced based upon the situation.  For example, if we’re talking about a surgery situation in a medical malpractice scenario, if you have a claim against a surgeon for not doing the surgery properly—what the court will do is, the court will consider what would another reasonable surgeon have done in similar circumstances.  If the surgeon or any reasonable surgeon would have done the same procedure in the same manner, then obviously the tort has not been committed.  That’s how the standard of care is applied in different circumstances.

There is another concept within the negligent category called contributory negligence.  What that means is if I am injured by the recklessness or negligence of another person but, in getting that injury, I myself acted in a negligent way then I may be held contributory negligence with respect to my own harm.  That’s another aspect within the negligence law.  The common example of law of negligence torts is motor vehicle accidents that we deal with all the time; product liability; professional liability, etc.

Strict liability: Now what you want to keep in mind in strict liability is this basic concept, that in strict liability the injured person does not need to prove fault by the wrongdoer.  They don’t need to establish that.  As long as there is an injury, in strict liability cases the injured person needs to be compensated.  That’s it.  Proving ‘fault’ is not required.  That’s why it’s called strict liability.  If the act has happened, liability correspondingly arises. 

A common example could be dog bite.  If you are an owner of a pet or a dog that has harmed another person, then the owner’s liability is a strict liability.  Your justification may not help.  The liability is imposed strictly.  Another common example of strict liability is that if any tort is committed by an employee during the course of his or her employment the employer is vicariously liable.  Employers justification of any kind would not work.  Employer is simply liable for the employee’s tortious conduct during the course of employment.

Another category is economic torts: These obviously, as the name implies, deals with economic aspects of our day to day life.  One of the common examples of an economic tort is inducing breach of contract.  If two parties have a contract and a third person who was not a party to the contract does something unlawful in such a way that one party breaches the contract with the other, then the harmed party may sue that 3rd person for the breach of contract between the other two parties. That’s inducing—asking someone or making someone to breach their contract with another person by unlawful means.  It’s another tort.

Intimidation in a civil matter, if it causes harm, it is it is subject to a tort.  Similarly, conspiracy (all kinds of civil conspiracies) will fall under economic tort.

What is it that you want to remember—that a better understanding of torts will lead to a better understanding of one’s rights and responsibilities in our day to day lives.  Also each tort contains different elements that must be proven to successfully seek remedies from the court.

In our future lectures we will pick every single tort, especially the most common ones.  Go through the basic elements that you need to prove in a court to seek remedies and then I’ll talk about the defences that may allow you to avoid liability in those torts.

Thank-you for watching and I look forward to seeing you in the next lecture.

Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

Today we’ll cover Rule 49 of the Rules of Civil Procedure in Ontario in our lecture.  This particular Rule deals with the Offer to Settle in a proceeding.  It has very specific implications with respect to the cost award in the outcome of your case.  It is a very important Rule to consider and use strategically in your proceedings. 

We begin with our disclaimer that this lecture is not legal advice.   If you have any specific questions regarding your case you should contact a lawyer or a paralegal or contact the Law Society of Ontario for a referral—if you do not know a lawyer or a paralegal.

Settlement of a proceeding can take place at any time from the commencement of your court action to its judgment.  Parties can agree to settle the case at any point.  They can make offers to settle and resolve their dispute bilaterally at any stage in the court action. I have been involved in cases where we have actually resolved and settled cases once the trial had begun. In fact, we were three days into the trial when the parties agreed to settle their case.  

You can also settle your case once the trial is concluded—as long as a judgment is not issued (oyou can come to a resolution and then settle your case.  Our judicial system (our courts) encourage settlements.  Just statistically it’s worth noting that over 90%; I believe over 95% of civil cases in Ontario do settle prior to going to trial.  It’s a large proportion of cases (majority of cases) that do settle without actually going to trial.

When parties make reasonable offers to settle and the other party does not accept it, there are consequences to not accepting the offers to settle.  The purpose of all these efforts is to encourage parties to settle the cases because once parties settle the case, they have the power to craft the settlement—they have the control over the outcome of their dispute. 

Once that dispute is handed over to a judge then the judge is going to decide in one party’s favor and so it’s kind of ‘win or lose’ situation.  Once the case is to be decided by a judge the parties lose complete control over the outcome because it is the judge who will decide which party’s case is meritorious and then rule in that party’s favor.  Parties are always encouraged to consider settlement options and the Rules of Civil Procedure are designed to encourage the parties to make settlements and also there are consequences if parties do not accept reasonable offers to settle.

There are 3 types of cost awards which I’ve mentioned in our previous lecture but I will briefly go over here again.

[A] One is full indemnity, which is extremely rare. Full indemnity means that you are successful in your case and you’re asking the court to award full costs that you have incurred—100% and make the other party pay your costs—which is extremely rare.

[B]  Most commonly the court awards partial indemnity—which is about 30 to 50 percent of the actual cost that you have incurred. 

[C] If you’re proceeding strategically, you can actually get substantial indemnity costs, which is 75 to 80 percent of the actual costs that you may have incurred. 

This substantial indemnity part is the one we’re trying to focus on in today’s lecture and explain to you how you use Rule 49 to get highest costs that are generally possible in your case.  We have talked about the importance of costs award in previous lectures.  Oftentimes the costs are neglected by parties.  The parties are so focused on the merits of their case that they don’t recognize the consequences of costs.  

It is important to understand that aside from the merits of your case what kind of cost awards you can get or what kind of cost awards can be awarded against you. I had explained this by way of an example in my previous lecture.  I’ll repeat it quickly. 

Imagine that you have a case where you’re claiming $30,000 in damages. You incur about $60,000 in legal fees and disbursements by the time you conclude your trial (which is not uncommon in Toronto).  You get a judgment which awards you the entire $30,000 but it does not give you any costs.  The outcome for you financially is that you’re out of pocket by $30,000 even though you are successful at trial.  That is why it is important to consider costs especially when the amount of money in your claim is not significantly high.  I would say anything less than $250,000 would not be considered significantly high—as long as you’re dealing with a matter in the Superior Court of Justice in Ontario. 

To deal with this scenario and how to make sure that you benefit from the cost structure and the award of costs in the judicial system, we will talk about Rule 49 which deals with “offer to settle”. 

Rule 49 essentially tells you that you can make all kinds of offers to settle during your proceeding; you can put an expiry date on that offer; the other side can counter that offer or accept that offer. 

The most important Rule that I want to focus for today’s lecture is Rule 49.10 which will give you the most benefit when you’re dealing with the cost award in your court action.  One of the conditions of Rule 49.10 is that it has to be made (this offer under Rule 49.10) has to be made at least 7 days before the hearing.  Before your trial begins you must put this offer at least seven days before that. 

Secondly, whatever offer you’re making – that offer must remain open until the commencement of the hearing. There’s specific language that we usually put in these kind of offers.  I’ll show you at the end by way of an example but there are two conditions: 7 days prior to the hearing and must remain open until the commencement of the hearing—it must not expire before then. 

Now if you have made an offer to settle under Rule 49, what are the consequences of that offer?  If you are the plaintiff and you are successful… let me show you the Rule first and then we’ll talk about it.  Here is Rule 49.10: “where an offer to settle is made by the plaintiff at least seven days before the commencement of the hearing; is not withdrawn or does not expire before the commencement of the hearing; and is not accepted by the defendant”.  (Defendant did not accept your offer and it was open until the commencement of the hearing) “… and the plaintiff obtains a judgment as favorable as or more than the terms of the offer to settle…” very important wording.  It’s not that you are successful—you have to be successful, the judgment that you get is the same as your offer or better than that that’s the only situation in which you will get a benefit for the offer that you have made. 

To give you an example you claimed $100,000 in your case and you made an offer to settle for $30,000.  It was a Rule 49 offer—it was made seven days prior to the commencement of your trial or the hearing and it was open until the commencement of the hearing. The defendant did not accept it.  When you’re successful if the court awards you $30,000 or more, then you get the benefit of Rule 49.10. 

If the court awards you $29,500 or $ 29,900, you do not get the benefit of this offer. Let me explain to you what the benefit is and then I’ll come back to this point about what should be that offer. 

The benefit is that you will get partial indemnity cost until the date of the offer.  Let’s say if you made the offer ten days before the trial all the costs that you have incurred from day one from the time you commence your court action up to the ten days prior to the trial you will get your costs on a partial indemnity basis which is 30% to 50% above your actual cost.

But from the date of the offer until the conclusion of trial or until the judgment is given you will get substantial indemnity costs—so the cost that you have incurred from the date of from the date of the offer until the end of trial. Let’s say those costs are worth $30,000 for the trial and its preparation.  Then you will get 75 or 80 percent cost of that value—not the total cost. 

What is important to keep in mind in the difference between the timelines is that you get the most advantage out of a Rule 49.10 offer when you make it earlier in the proceeding.  You want to make this offer right at the beginning when you commence your court action because then whatever costs you have incurred from that time when you made the offer till the end of trial you get substantial indemnity cost—which is more than 75 percent or 80 percent of your actual cost.

Now I want to go back to our point: “where the plaintiff obtains a judgment as favorable or more favorable than the terms of the offer to settle…”.  This is the way the court makes a party to act reasonably.   When you issue a claim the most important thing you are considering is what is it that I’m going to realistically get out of this court and you have to make that assessment accurately or as accurately as possible.  If you claim $100,000 and you make a Rule 49.10 offer to settle for $70,000 just because you wanted more money but realistically you’re not going to get $70,000 and you do not get $70,000, the value of this offer is lost. 

You have to be very, very honest very, very careful and very, very accurate about what is the number that you believe that the court will get you. You want to get a little bit lower than that because you want to succeed. You want to hope that if you’re successful, 100 percent of the time you are going to get at least the same or more than what you have offered to settle. 

The same applies to the defendant.  If you are defending a court action, when you’re making an offer to settle you want to make sure that you want to present an offer that the plaintiff cannot beat at trial.  The judge will give you a better or the same result that you are offering the other side to settle.  This particular sentence compels the parties to act extremely reasonably otherwise they will not get the benefit of Rule 49.10 offer.

It’s very well-thought-out.  It is used as a mechanism to ensure that parties act reasonably and when they act reasonably they get a significant advantage in terms of cost and when they act unreasonably they do not get that advantage.

Now on the defendant’s side, if the plaintiff is successful—take the same example that you made an offer of $30,000 Rule 49.10 offer and then you’re not successful.  You get results which are less than your offer to settle.  Then what happens to the defendant?

Let’s go to the defendants offer: “where an offer to settle is made by the defendant (now the defendant in this scenario is making you an offer or if you are the defendant you’re making the other side an offer to settle) that offer is again …seven days before the commencement of the hearing; it is not withdrawn or does not expire before the commencement of the hearing; and is not accepted by the plaintiff”.  The defendant has made an offer “…and the plaintiff obtains a judgment as favorable or less favorable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity cost to the date the offer was served; and then the defendant is entitled to partial indemnity cost from the date unless the court orders otherwise”.

In this scenario what’s happening is that the defendant made you an offer to settle (you are the plaintiff) and the defendant makes you an offer and you get a judgment again in your favor as a plaintiff you win the case but the judgment is same or less than what the offer was that the defendant had made.

The defendant was willing to give you the same money or more than what you got on the judgment, then what the court is going to do is that you as the plaintiff will get your partial indemnity cost up to the date when the defendant made the offer.  But thereon, the defendant is going to get partial indemnity cost.  You are not going to get the benefit of the cost award in that situation.  Now, the converse is applying.  Now the defendant is benefiting in this case because of their Rule49.10 offer to settle and again this offer is most advantageous when it is made earlier in the proceedings—the sooner you make, the better.

What is the lesson to take? It is that when you make Rule49.10 offers you need to be very realistic about your case, about the outcome of the case and you want to make it as soon as or as early as possible so that you can get most advantages out of your court action. In the last one year there was a case that came out where the plaintiff made a Rule 49 offer—it was an employment law case—right at the outset/the commencement off the court action.  The offer was very reasonable and the plaintiff’s counsel understood at some point that the defendant is going to fight this case aggressively, cause all kinds of challenges for the plaintiff to continue the fight, maybe act unreasonably and, create all kinds of hurdles so the plaintiff had very strategically made this offer to settle Rule49.10 and kept it open until the commencement of trial which is one of the conditions and they were successful. 

The plaintiff was successful in getting a judgment which was same or better than their offer and they got huge cost awards. I believe the value of judgment that they got was about $250,000 but the cost award was about $500,000.  That was a case where a party strategically used Rule49.10 in its favor and got significant—twice the amount of money in cost than the claim that they had made in that court action.

Before we go let me show you an example of a Rule 49 offer that I had made recently in this case.   You don’t have to use the same example.  This is just to give you a sense—in this case the plaintiff offers to settle as follows and (1) there is a date on which the offer is being made (2) that if the defendant pays $17,600 as reasonable notice, $15,000 as general damages and $20,000 in cost award, inclusive of disbursement and HST; (3) that’s if they accept it on a specific date; (4) but then if accepted after January 22^nd, the offer in these two amounts are the same but the cost award is now changed to $20,000 cost plus substantial indemnity cost thereafter. 

It specifically says that that if you accept after this date you will incur substantial indemnity cost.  Then it specifically says here that (a) this offer is made pursuant to Rule 49 and (b) then shall remain open until one minute after the commencement of trial.  We’re making sure that the offer remains open until the trial.  It’s a typical thing the lawyers say “it is open until one minute after the commencement of trial” and if accepted the plaintiff will consent to the dismissal of the court action in the counterclaim and execute a release.  You can use a similar format but the key thing is it you should say it’s pursuant to Rule 49 and it is open until the commencement of trial.

Those are the important things.  Again the key message that you want to keep in mind is that you want to carefully consider the cost consequences of your court action and you use Rule 49 offer (Rule 49.10) specifically, strategically so that you can benefit from the cost award in your favor.

Thanks for watching

Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

In today’s lecture we will explain to you the Request to Admit Fact or Document in the Ontario civil procedure.  We will explain what this Request to Admit is. Why do you use it? and how do you go about making that request? or answering that request, if you have been served with one?  We begin with our usual disclaimer that this lecture is not legal advice.  If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or contact the Law Society of Ontario for a referral (if you don’t know a lawyer or a paralegal}

What is request to admit fact or document? “A party can make a formal request (in this court process/in the civil court action) to another party or parties to admit the truth of a fact or authenticity of a document”. If you are serving a request to admit to another party you are asking the party to accept the truth of a fact that you have alleged in your statement of claim or statement of defence (in your pleadings) or if you have served the document as part of your affidavit of documents (that you will use at trial) you are asking the party to admit to the authenticity of that document. 

Let me explain this to you by way of an example which will make it a little bit more clear.  Let’s take a case in an employment law context.  Imagine that you are the plaintiff.  You are a former employee of a company which is the defendant.  You had worked for the company for about 3 years.  Then your employment was terminated.  You commenced a court action for wrongful dismissal damages against the company.  

In that claim you will indicate one of the facts that you will allege which is a relevant fact in cases of this nature what was the total length of your service with that employer.  In this case you had worked for the employer for 3 years. When you go to trial because you have alleged in your statement of claim that you were employed with that company for 3 years you will have to prove that fact. You will have to provide evidence to the court that will show the court (demonstrate to the court) that you were indeed employed for 3 years.  The court will not just take your word or your evidence or at least your statement on its face value. There has to be some evidence to prove that—it could be oral evidence or documentary evidence.  You may need to show your employment letter indicating when you were hired.  You may need to rely on your paystubs or some other form of documentary evidence that you were indeed employed for 3 years—now proving that point that you were employed for 3 years to the court by providing some documents or other evidence will take some time.  It may take about 5 to 10 minutes for you to just prove that one fact to the court that you were indeed employed for that company for 3 years.

One way to avoid that requirement (to prove that fact) is that you can make a request to admit to the employer prior to the commencement of trial. It is done much earlier than the trial time—that you request the employer to admit the fact that you were employed with that company for 3 years and the employer can either admit it if it’s a non-contentious issue. They most likely will admit it or they may deny it. They may not agree that they are admitting to that fact and they’re putting the burden on you to prove that you were indeed employed for 3 years. This is a sort of a benign example but it does get complicated.

For example, you know that in the 3 years that you were employed, the first 6 months you were employed through a temporary agency and you are alleging that the entire 3 years should be considered as your employment service.  The employer may be arguing that the first 6 months should not be considered part of your employment service because you were through a temp agency. It can get complicated.

 If it’s a contested fact chances are that the other party will not admit to it. But then there is downside to it for the other party if you are able to prove your fact.  There is a strategic reason for why you want to do that which I will explain in the following slides. You can ask through the request to admit the other party to admit to the truth of a fact or as many facts as you want.  Similarly, you can ask the other party to admit to the authenticity of certain documents. 

In this case you may say, “Hey, the defendant (the company) here is my employment contract.  You had issued it to me. Here I have a copy of this. I’m serving it to you as I will rely on this document at trial to show that this was my indeed my employment contract. I want you to admit to the authenticity of this employment contract because if the authenticity of the employment contract is admitted by the other side, then you don’t need to prove to the court at trial that the document that you are presenting is indeed a copy of your employment contract.  This is to give you a sense how it happens at trial. Every fact that you plead, every fact that you present you have to prove it either by documentary evidence or any other evidence but you have to prove that (you have to provide evidence). Similarly, every document that you present, you have to prove that that document is an authentic document. That’s the burden of proof that you will have and by serving this Request to Admit you can at least overcome some of those challenges by asking the other side to admit to the truth of fact or authenticity of a document.  They can do the same with respect to their facts and document.

This particular issue about admitting certain facts are true facts or the authenticity of documents is dealt with under Rule 51.  You can read that Rule but I will give you some of the important aspects of that Rule here so that you have a brief overall understanding of what this Request to Admit is about and how to effectively use it.

1st of all the Rule 52.02, you want to read that. And that Rule explains that you can serve this Request to Admit through Form 51 A.  I can quickly show you this form. This is Form 51A, a Request to Admit.  I’ll come back to it and begin to give you a sense of what is contained in that Form 51A and how do you fill that out.

Once you have served Form 51 A, your Request to Admit, the other party has 20 days to respond.  It’s set in Rule 51.03(1), that the party has to respond to your Request to Admit within 20 days of its service and if the other side does not respond then it is considered a deemed admission that you have served your Request to Admit—the court will treat that failure to respond as an admission on their part that they have accepted the facts that you have requested them to admit or they have accepted the authenticity of documents that you have asked them to admit.

This is the most important part that I want you to keep in mind which is the main reason why we want to make this Request to Admit—if a party refuses to admit a fact or authenticity of a certain document and at trial you are able to prove that fact or you’re able to prove the authenticity of that document, then there are negative cost consequences for the other side.  What the court is doing here is making the parties reasonable with respect to the things that they have to prove at trial.  If there’s something that is reasonable to accept because the other party will be able to prove it at trial, then you’re better of admitting to the truth of it because if you don’t and you’re not able to disprove that fact or you’re not able to disprove the authenticity of that document then the court will penalize you by awarding costs against you—by awarding you lesser costs than you may be entitled to.  This is one of the reasons why a Request to Admit is important. 

There are other strategic reasons for this Request to Admit.  It is a very important tool.  I want to give you a little bit of a broader understanding of what we can do with this tool.

One of the things that you can do or achieve through Request to Admit is that you can narrow down contentious issues.  In an average Statement of Claim you may have 40 to 50 facts that you may have pleaded, that you now have to prove in order to receive the remedy that you’re seeking from the court.  If you can filter out non contentious issues—for example, if you have to determine the length of your service and it’s not a contentious issue why not make it a Request to Admit and have the other side admit to it because then that’s one less issue that you have to prove (one less fact that you have to prove) to the court. 

You are saving your own time, your own financial resources and also judicial resources. You can narrow down contentious issues so that you can really spend the time for your hearing or for your trial on the issues that are genuinely contentious.  That is where you really need the court’s judgment. 

By narrowing down the contentious issues you obviously limit the length of trial.  If you have reduced it by 5 minutes to prove every single fact or 10 minutes to prove every single fact and if you start cutting down the facts that you have to prove at trial, it will obviously reduce the time (the length) of trial—less time and you will incur less cost and you will save judicial resources, as well. 

Another part that you want to keep in mind is that by requesting the other side to admit certain facts and documents you can actually control the scope of issues at trial.  This is a bit of a subtle point but an important one because sometimes you may ask the other side to admit certain benign facts but by admitting those facts you put yourself in a position where you are able to present your case better.  I can again give you an example of an employment law case. 

One of the factors that you may have to prove at trial is, or the other side (if the company is on the other side) may challenge whether you made efforts to find another job (which is called mitigation efforts).  You may have applied to 450 to 600 jobs and had not found a suitable comparable job that you were looking for. You have all of the evidence to show that you applied to this company and that company and you can go through each job search—all those 600 job searches—which is exactly what you did in terms of your mitigation efforts. 

In a trial you obviously have to prove each and every job search to show that you had applied to 600 companies or 600 advertising jobs—you applied for them and did not find a job.  One way you can shorten this is by presenting to the company that look I’ve already provided you with all the job searches that I’ve done: I’ve given you the names, I’ve given you the contact information and whatnot and based on all of the documentary evidence I’ve given to you I want you to admit that I have made sufficient efforts to mitigate my damages.  That’s one thing that you can do. Then when you do that you can actually put the company in a bit of a complicated situation because if they admit to it that yes you have made sufficient efforts that they are satisfied with it then a large portion of the fight at trial has been eliminated.  You have put yourself strategically in a good position because you now have control the scope of issues that will be at trial and this major portion of the issue is not going to be litigated because the other side has admitted to the truth of the facts that you have made sufficient efforts. 

On the other hand, if they deny it and you have to go through each and every item of your job search out of from 1 to 600, then you know it obviously creates a huge problem for the other side because if you are able to prove it—that is a significant amount of time that you’ve spent in order to prove that. 

While you’re going through that exercise and if you’re able to continuously show that you actually made those efforts and the company has not been able to create significant doubts in your testimony, then you have proven your part of this case, you have earned more sympathy from the judge, and made the judge at least think that the other side has acted unreasonably in not accepting 600 job searches—which were significant when you looked for a job.  That’s one way that when you think about the Request to Admit strategically you can actually control the scope of how and what issues are presented at trial and hopefully you can agree on the issues that are more favorable to you and then continue with the trial in that way.

Finally, as I’ve indicated there are cost consequences.  It is very important that you trigger cost consequences by making appropriate Requests to Admit because at the end of the day even if you’re successful and you get your damages it is very important for you to obtain the best cost award as possible because that is also a significant investment that you’ve made in your action. 

Let me quickly go to Request to Admit and then we’ll conclude this lecture.  It’s a pretty straightforward form.  You basically say “You Are Requested To Admit, for the purposes of this proceeding only, the truth of the following facts…” and then you list the fact in a numbered paragraph. 

You can say I want you to admit: 1. The plaintiff was employed with the company for 3 years (the plaintiff was employed with the defendant for 3 years). Fact number 2. The plaintiff is 51 years old or whatever other facts that you want the plaintiff to admit.  You put them in paragraphs consecutively.  Similarly, the next paragraph is for the documents and you can say: “I want you to admit the authenticity of the following document/s”. And you identify the document appropriately.  For example, if it’s an employment contract of the plaintiff—Employment contract of the plaintiff, so and so (name), dated so and so (date) comprising 5 pages or whatever—so that the document can be correctly identified. 

Then you attach that document with this Request to Admit and then you fill out the date and the name and who you are serving with their information and you send it by fax or other means that are permitted under the Rules. And, similarly, when you’re responding to it—you basically type it here “A Response” to Request to Admit and you take the fact and just copy the fact as it is presented and you type in your response against it.  Then you take another request (whatever the specific Request), you copy it and paste it here. Then next to that you type out your response. 

Similarly the same goes with the documents.  That’s all you have to do.  You serve it back on the other side within 20 days and remember that if you have not responded within 20 days then the court will consider that you have admitted to the truth of the request to admit that has been made.  It is a great tool if you use it strategically. I hope that I’ve given you some understanding of how to effectively use the request to admit and how to deal or respond to requests to admit in a civil proceeding in Ontario.

Thank-you for watching.

Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

Today we’ll talk about Amendment of Pleadings which is covered under Rule 26 of the Rules of Civil Procedure in Ontario.  We begin with our usual disclaimer that this course is not legal advice if you have any specific questions regarding your issues you should contact a lawyer or a paralegal or contact the Law Society of Ontario for a referral.

What is meant by amendment of pleadings?  The basic principle you want to keep in mind is that you can only get from a court what you have asked for in the pleadings.  What does that mean? If you have asked for damages of $100,000 in your pleadings and at trial you are hoping that because your case was so good the judge will award you $250,000, that’s not going to happen because you have only asked for $100,000. 

Even if the judge believes that you could have gotten more damages or you should have been entitled to more damages but because you have not asked for it you will not get it.  That’s the basic thing so you have to consider pleadings and what you’re asking to be contained in the pleadings (within the four corners of those pleadings).

Similarly, let’s say that you want the court to award you damages for mental pain and suffering but if you do not ask for damages for mental pain and suffering—if you do not plead that tort of mental pain and suffering, you will not get damages for that.  If you do not ask for punitive damages, you will not get punitive damages.

The basic thing that you want to understand is that the court will only grant you something that is contained in your pleadings and if it’s not in the pleadings you will not get it.  If you understand that, then you realize that your pleadings are very important, whether it’s a statement of claim or statement of defence—the documents are important.  And what you are asking the court to do? Either to accept certain facts as true or to provide you certain remedies—you have to ask for it. 

Just a quick reminder for those people who do not realize what pleadings are.  Pleadings are statement of claim, statement of defense, reply, third party claim, cross claim, etc.  Those are the basic documents in which parties lay out their position for the court in terms of claim, in terms of defences and in terms of claiming any remedies from other third parties.

Why you may need to amend pleadings?  There could be multiple reasons why you may need to amend pleadings and I’ll give you some examples.  (1) You may need to add delete or substitute parties.  You started a court action and then you realize at some point that there are additional parties that you want to add as defendants in your court action.  Then you have to amend your pleadings to add those parties or that party into the court action. 

Or, you may have misspelled the party’s name and when you have to correct that spelling mistake then that will be considered a substitution of parties.  You will have to amend your pleadings to actually correct the spelling of that party’s name. 

Similarly, you may realize that you no longer need a party or you don’t think that the party that you have named as a defendant should not have been a party and you want to delete that party’s name—you will have to amend the pleadings to get that. 

Similarly, you may have made mistakes in your pleadings, you may be looking for damages for $250,000 and you may have inadvertently put $25,000.  If there’s a mistake and you want to correct it you, will have to amend the pleading to fix that.  

You may realize that there are new facts that are relevant to your case, that you have not pleaded previously and you want to add those facts into your pleadings—you may need to amend the pleadings. 

Similarly, you may have causes of action (cause of action is the legal basis of something that you’re asking the court to do)—for example, as I said tort of mental pain and suffering could be a cause of action that you have not pleaded or you may have pleaded negligent misrepresentation but you want to add fraudulent misrepresentation into the cause of action that you are asking the court to grant you so you may need to change, add or delete causes of action. 

All of these circumstances are ones in which you will have to amend the pleadings.  Then again, you may want to change the amount of damages you are claiming—you may add damages or reduce damages or delete damages—you will have to amend your pleadings to do that.

Where does the right to amend a pleading come from? This is contained in Rule 26.01.  The most important part of the Rule that you want to understand is the language that is used in this Rule “the Court Shall grant amendment unless…”  Let me take you to the Rules.  We will quickly read it:  Rule 26.01 says:

“On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by cost or an adjournment.”

The important part is that the Rules require the judge to grant to you the opportunity (to grant you the permission) to amend your pleadings at any stage—it could be right at the time of trial or it could be just before you commence the trial and you want to amend your pleadings and the court shall grant it to you.  

The exceptions are that granting you that amendment, at that time, is going to prejudice other parties in such a way that prejudice cannot be compensated by cost because the court can award costs against you for bringing these amendments in a delayed fashion or the court could grant an adjournment.  If you ask for an amendment at the eve of trial the court may believe that you may be granted that amendment but it will be unfair to the parties to respond to that the next day at trial the court may grant adjournment.  If the court can compensate your delay by awarding cost or by granting adjournments then the court shall grant it. 

Generally, the basic principle of amending the pleadings is that the court is required to grant you to make your amendments because the court wants each party to present their case in the way they want to present it—to set out the causes of action; to set out the facts as they deem appropriate even if they are coming with those amendments later in the court process.  

But you want to remember that the basic Rules of the pleading still apply.  What that means is just because you are including something as part of the amendment does not mean that you can do anything with those pleadings.  For example, if you’re what you’re asking the court to amend is frivolous or vexatious; the court may not allow it.  The Rules are the same—that what cannot be included in the original statement of claim will not be allowed to be included later just because you are doing it by way of an amendment. 

Similarly, if your limitation period is expired, then the court may not grant you the amendments because the time to add a party, for example, has expired (the limitation period is expired).  That party may have a valid defence to say that such amendment may not be granted because the limitation period is expired.  The important point I want you to remember is that the basic rules of pleading still apply to any amendments that you are seeking.  

Now, how do you amend a pleading? Rule 26.03 covers that.  I’ll give you three scenarios in which the amendments are possible.

(1)  first scenario is without the leave or consent of the court.  You can just go ahead and have the amendment done and file it with the court.  That’s the first scenario. The easiest one

(2) The second is on consent of all parties.  

And (3) then third is with leave of the court.  Let’s go through each scenario one by one.

(1)  Without leave or consent: there are two conditions that you need to meet in order to amend your pleadings without consent or without leave of the court.  The first condition is (a) that the pleadings are not closed.  And what is meant by pleadings being closed?  (i) I’ve covered it in another lecture but Rule 25.05 is the one that describes when pleadings are closed.  

There’s a specific meaning of these words pleadings being closed.  Pleadings are closed when either you have or a party has delivered their reply—meaning they have served it and filed it with the court or the time for the delivery of reply has expired.  That’s number one and (ii) number two every defendant who is in default, has been noted in default. 

Once these events have occurred—either the reply is delivered, and every defendant who is noted in default is noted in default, then the pleadings are considered closed.  As long as the pleadings are not closed you can go ahead and amend your pleadings.  You do not require anyone’s permission prior to the close of pleadings.  You can simply amend your pleadings—go to the court office and have the Registrar issue you the amendment. 

(b) The second condition is that the amendment you are seeking prior to the close of pleadings does not include addition, deletion or substitution of parties.  If it’s an amendment that does not include addition, deletion or substitution of parties and pleadings are not closed you can go ahead and amend those pleadings without permission of anyone.

(2) On consent: this is pretty straightforward.  You need to obtain consent of all parties if you want to amend your pleadings.  If the pleadings are closed, at any stage during the court action, you can write to the other parties and say that I wish to amend my pleadings in this form.  You provide them with your draft amended pleadings and obtain consent of all parties.  Once they provide you the consent, you file that consent with the court along with your amended pleading.  The Registrar will amend your pleadings. 

Obviously, if you do not get the consent of parties there may be a situation where a party may not grant you their consent, then, you’ll have to bring a motion and seek a court order to amend your pleadings.  Now, remember, that when we’re talking about the consent of parties we’re talking about consent of all parties.  If you are adding, deleting or substituting parties, then you need the consent of those parties that you want to add.  If there’s a party that you’re going to add, which is not presently a defendant or a party in any way and you want to add that party as a party in that court action then you need (you require) their consent as well.  (3) And third is leave of court: Obviously, you can bring a motion under Rule 37 and you ask the court to grant you the amendment that you want.

How do you actually make the amendment on the document? It is in a specific way.  The Rules are very specific in how you make those amendments.  I’m going to go through that very quickly with you.  I’ll actually show you a quick example of one of the amended pleadings that I have. 

(1) First of all you have to add the word “amended” to the title of the pleadings.  (2) You have to keep the original issuance date.  (3) Then there is another option which is called “fresh as amended” which I will show you.  Let me see if I can show you a pleading. This is an example of a pleading.  I have taken away the court file numbers and parties name but you can see here that originally it was a statement of claim and I had amended it.  I have added amended and I’ve underlined it—which shows that I’m seeking the amendment of this claim.  Then whatever the original issuance date was—in this case it was February 10^th 2016.  You keep that—you do not change the date to the current date.  You keep the original date as it is because when the registrar will amend it, the Registrar will put a stamp here and then put an issuance date here which will be the date of the amended statement of claim.  But you do not change this date.  

If you scroll down, you see that I’ve added this paragraph that my client is seeking short-term disability benefits for a certain amount and this was not previously claimed.  We have added a sub-paragraph here and that paragraph is underlined.  Every single amendment you make needs to be underlined.  That’s the important part that you want to keep in mind. 

Then similarly, if you scroll all the way down you will notice that the back page also takes the word amended and you provide that.  If you have multiple amendments—you made this amendment and then later on you realize that you need to amend it further.  Then what you have to do is you add another word amended here and then you put another underline—so two underlines will indicate that there have been two amendments to the document.  One underline indicates one amendment.  If I have to amend it again I will add another word here saying amended—so that indicates that it has been amended twice and underline it and so on and so forth.

What you want to keep in mind is that when you are drafting pleadings originally, not the amended ones, you do not want to use underlining at any stage in the pleading.  You will see that none of the headings are underlined because the underlining in Rules is specifically used to show amendments. If you underlined in the original pleadings—that becomes confusing when you are actually amending the pleading, for any reason.  Ideally when you’re drafting these pleadings you do not want to use underlining in your pleadings.

“Fresh As Amended” is another term that you can use. Essentially what it is—if your changes or amendments are so cumbersome that it will be difficult or inconvenient to read that document, then what you can do is you create a fresh document with all the changes that you want.  You do not underline anything except that you change the title to “Fresh As Amended”.  The rest of the pleading will be the same without any underlining because it’s a fresh document.  Over here you will create the wording “Fresh As Amended”.  That will indicate to the reader that this is a fresh statement of claim which has been amended and it has been amended without the underlining because by reading through those under linings it would have been cumbersome and difficult to read.  As I said, (a) for multiple amendments you’ll have to add additional lines for each occasion and (b) then do not underline the contents of the pleading unless you’re making amendments. 

Issuance and service of amended pleadings:  You take the amended pleadings to the court, the Registrar will issue the amended pleadings and put an issuance stamp on it.  Then you must serve the amend pleadings on each party.  You follow the Rules of Procedure about service and also about if you were served with amended pleadings then what do you need to do with respect to any filing of any response or delivery of any response.

In conclusion, you need to carefully consider whether you required the amendment or not.  Sometimes its strategic, sometimes it’s essential.  You want to consider the appropriate time for amendment.  Do you need to wait till trial? Do you need to wait till the end of examinations for discovery?—which may be an opportunity to revisit your case and see whether the amendments are appropriate or not.  You want to make sure that you follow the applicable Rules and once you have amended your pleadings you do it properly—go to the Registrar have it issued and serve it on parties.

Hopefully that explains to you how pleadings are amended under the Rules of Civil Procedure in Ontario.  Thank-you for watching.