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2.9 million of you can’t be wrong… or can you?

You may feel bad about that parking ticket you got, but at least you’re not alone. In 2007, the year for which the most recent figures are available:

- Nearly 2.9 million parking tickets were handed out in the City of Toronto.

- More than 60% of dinged drivers were from the 905 area

- 1,084 tickets paid in 2007 were for tickets issued in 1989

- 175,655 drivers requested trial

- 28,354 parking offences actually went to trial

- Only 30% of those drivers got off

- 434,742 tickets were cancelled for eight different reasons, including out-of-province plates, errors on the ticket, the offender drove away before the officer could put the ticket on the windscreen, or some of the writing on the ticket was illegible.

Article by Howard Levitt
Workplace Law

Louise Borsato believed she had her dream job - working fewer hours for the same pay - and when her employer tried to tamper with her pay, she sued.

A progressive employer before the term was common, Vancouver-based Atwater Insurance Agency hired Borsato in 1990, to work 9:00 a.m. to 3:00 p.m., five days a week, to accommodate taking her children to and from school.

Borsato had considerable latitude in scheduling her time: The six-hour day was simply a guideline. Her salary would remain the same regardless of the hours worked or whether she worked four days at six hours or five at eight. As her responsibilities grew and her children became older, Borsato tended to work full five-day weeks, and her salary increased.

The sale of the agency did not change the arrangement. She continued to enjoy complete autonomy in scheduling her time. The new owner assumed she was working full-time and made no inquiries. He learned she was taking Fridays off, 10 years later. When he confronted her, she told him she had been doing this for some time.

The owner wrote to Borsato accusing her of unilaterally changing her hours. He said he would agree to reduce her hours by 20% if her pay was cut 20%, then proceeded to have her salary reduced and deduct overpayments from future commissions. Borsato sued for constructive dismissal.

Madame Justice Fenlon of the B.C. Supreme Court dismissed the employer’s defence that Borsato had abused a portion of trust. She regularly reported her hours to head office and had no duty to inform the agency owner of the terms of her contract. Although, Borsato was working more than 30 hours a week when he bought the agency, she did so voluntary. The court noted that voluntary overtime provided by an employee, even a manager, does not mestastisize into an obligation.

The Court determined Borsato was entitled to rely on the terms of her contract, which required her to work 30 hours a week, with additional hours as needed to meet the demands of her management position. Her employer had constructively dismissed her by unilaterally reducing her income. Borsato was awarded 15 months of pay and legal costs.

In an economic slowdown, employers might be looking to cut employees wages and hours. This case highlights the perils of disregarding legal requirements. Consider the following before acting:

Ascertain the terms of any original contract of employment;

• Avoid unilateral action to reduce an employee’s income, giving rise to a constructive dismissal;
• Give sufficient notice of any proposed reductions in pay or time;
• Introduce employment agreements for new staff that let you adjust hours and pay to meet changing economic conditions with minimal notice;
• Negotiate a reasonable transition period to a reduced schedule or salary, if an advance notice period is not practical.

If you owe or are owed money, you may eventually have to go to court. Most people never have to sue or be sued for large amounts of money, and that’s why there’s such a thing as small claims court. It’s designed to hear claims of $10,000 or less, and the procedure is simple enough to allow most people to represent themselves.

If you are going to successfully sue someone, you will need evidence that they actually owe you what you say they do. The best evidence is one or more clear documents, such as contracts, letters, cheques or receipts. However, the oral testimony of witnesses is also good, especially the more witnesses there are who say the same thing, and the more distant your relationship is with them. Your own oral testimony is also evidence, and can be good enough provided that it is not contradicted or, if it is contradicted, that the judge believes you. You can’t count on that happening however, so if you don’t have independent evidence, there is often no use involving the small claims court at all, regardless of how strongly you feel about the case. Chances are that you will only end up wasting time, and quite possibly more money, as well.

If you do have solid evidence of your claim, the next hurdle you must overcome is being able to find the person who owes you. Again, if you do not know where the defendant can be served with legal documents, the court will be unable to help you and you might as well not proceed. Depending on the nature of your claim, you may have up to six years in which to bring a lawsuit, which may give you extra time to find the defendant. However, once that time is up you effectively have no claim, and the limitation period on some claims is much shorter than six years. If for whatever reason you cannot bring your action immediately, you should consult a lawyer about the limitation period that applies to it.

Another reason not to bother suing, even if you can find the defendant, is if you believe he or she has little or no assets or income from which to pay you. Again, even if you win in court, the court offers only limited assistance in collecting the judgment, and if the defendant or defendants can’t pay you, no one else does, either.

COMMENCING A SMALL CLAIMS COURT ACTION

To commence a small claims court action, you must obtain a claim form from any small claims court and fill it out. If you do this, you are known as the plaintiff, and the person you are suing is, of course, the defendant. However, you must take the claim form back to the court in the particular area in which the defendant lives or carries on business. There are only limited circumstances in which you may bring the action somewhere else, for instance if you live somewhere else and the contract was signed and carried out there. If you intend to bring the action somewhere other than where the defendant lives or carries on business, you must ask the court for a form called affidavit establishing proper jurisdiction, and fill it out.

To file your claim will cost approximately $75, which is added to what the defendant owes you. You must then serve the claim, which requires that you mail or deliver it to the defendant, or have someone else deliver it to the defendant for a price, which again is added to the amount you are claiming. You or the other person must then obtain an affidavit of service form from the court, fill that out and file it. The defendant will then have 20 days in which to file a defence.

If the defendant does not file a defence, you will win by default, and obtain what is called default judgment. If the defendant does file a defence, the court will schedule what is called a pre-trial, and send both parties notice of it. A pre-trial is an informal meeting before a judge who will give his opinion as to what the outcome of the case should be, in order to encourage both parties to settle. This judge’s opinion is not binding, and is not even recorded in the court’s file, so as not to influence the judge who hears an eventual trial. Many cases are settled at the pre-trial stage, but no one can force a party to settle.

If a case is not settled at pre-trial, nothing further will happen unless either party pays a further fee of $100 and asks the court to schedule a trial. If this does not occur, the court will schedule a trial and again notify both parties, and a judge will decide the matter on the date set.

Although small claims court is designed to allow people to represent themselves, if you have to attend court, you should at least speak to a lawyer or paralegal beforehand.

COLLECTING A JUDGMENT

If you obtain judgment against someone you have sued in small claims court, the best thing to do next may be to send the person a clear, polite letter reminding them of the amount they owe (which may now include interest and costs), and asking them to contact you to make arrangements to pay. Depending on the amount owed, it is usually reasonable to accept at least two or three payments over time, rather than demanding the entire amount at once. However, very often the person who owes you money will not even respond to your letter, so if you don’t receive a response for a couple of weeks, be prepared to take further action.

If you know where the person works or what bank they use, you may be able to garnishee some or all of the money you are owed. Begin by taking this information to the small claims court office. You will be given a form on which to record whatever you know, and the court will mail the form to the employer or the bank, and notify you of the result.

If you don’t know where the person works or banks, or whether they are employed at all, the court office has another form you should fill out to require the person to attend court to be examined. You also attend the examination, and you get to ask the person these questions with a judge present. You may obtain information that will allow you to garnishee, or the judge may make an order requiring the person to make specific payments over time.

If you could not locate the person who owes you money, or if you knew the person had no assets or income, it was not likely worthwhile suing in the first place. This is because even if you obtain judgment, the court cannot force someone to pay money they don’t have, and no one else is responsible to pay you. If you obtain judgment and can’t enforce it, your only option may be to wait and see if the person turns up or gets a job, and to try to enforce your judgment at that time, in one of the ways described above. In that case, you will have to attend the court office at least once every six years, to renew your judgment.

Small claims court can be confusing for those unfamiliar with the legal jargon, proper paperwork procedures and complications that can arise even in the simplest of cases. Our concierge and legal clerical services has been specifically designed to simply the entire legal process of commencing or responding to a claim.

For more information on these services, or if you’d like to book a free consultation, please contact us.

Small claims court is an informal and inexpensive process for settling disputes. In order to keep the whole process simple, the court will only deal with property and monetary claims up to a certain limit. In the event your case exceeds those limits, you may still wish to use the small claims court for the easy, fast and cost-effective procedures used therein.

To do this, it simply involves waiving your right to any claim that falls beyond the limit of the small claims court. It is up to you to represent yourself or to get expert legal representation to assist you in complex cases.

Small claims court can be confusing for those unfamiliar with the legal jargon, proper paperwork procedures and complications that can arise even in the simplest of cases. Our concierge and legal clerical services has been specifically designed to simply the entire legal process of commencing or responding to a claim.

For more information on these services, or if you’d like to book a free consultation, please contact us.

Ontario Transportation Minister Jim Bradley has recently hinted at new legislation coming this fall that would crackdown on the use of personal electronic devices while driving. From the Toronto Star - http://www.thestar.com/article/470238

By Rob Ferguson
Queen’s Park Bureau

Motorists, get ready to drop that cellphone, BlackBerry or any other gadget that pulls your eyes off the road and hands off the wheel.

Proposed new legislation to curb drivers preoccupied with “electronic distractions” is coming this fall, says Ontario Transportation Minister Jim Bradley.

Bradley’s office wouldn’t give more details on what will be in the legislation yesterday.

The new law could range from an outright ban on use of electronics while driving to measures to toughen Ontario’s existing laws. Currently, a driver convicted of driving “without due care and attention” can face fines of up to $1,000 and a prison term of up to six months.

The idea behind the “distracted driver” legislation is to reduce potentially deadly traffic accidents in a fast-moving environment where multi-tasking can be dangerous.

“We think we can come forward with a very good package that will improve our safety record,” Bradley said yesterday in an interview to be broadcast this weekend on Global TV’s Focus Ontario.

“Even though we’re the tops in North America year in and year out, outside of the Northwest Territories, we still think we can make even more progress.”

The move was applauded by Toronto police and Progressive Conservative MPP John O’Toole (Durham), who for years has been pushing the government to take action against hands-on cellphone calls through a series of private member’s bills.

“I’m a firm believer we need to have our drivers’ attention on the roadway,” said Staff Sgt. Steve Reynolds, of the Toronto police’s traffic department.

O’Toole, his party’s transportation critic, said multi-function devices that do everything from making phone calls and emails to playing music are poised to become a bigger issue as manufacturers keep looking to add more functions.

“You can do everything on these things. That’s the problem,” added O’Toole, who advocates time limits on phone conversations in cars and doubts the government will ban hands-free cellphone calls.

The turning point came in late May when Premier Dalton McGuinty had a change of heart from the days when he dismissed cellphone bans with such lines as “Where do we draw the line? Do we ban coffee drinking in cars?”

But a spate of fatal accidents involving cellphones apparently persuaded the premier of the dangers of cellphones. McGuinty said the province would look into a broad regulation to encompass all electronic distractions.

One U.S. study estimated driver distraction is a factor in 80 per cent of North American car crashes.

In 2002, a coroner’s jury recommended a total ban on cellphone use after an Ajax man and his 2-year-old daughter died when their truck was hit by a train while the man was making a phone call.

The inquest heard that Richard Schewe failed to notice the flashing lights and gates at a Pickering railway crossing while chatting.

Then in 2006, a Keswick woman and her 4-year-old son died when their car spun out of control and slid into a Holland Marsh canal. South Simcoe police said Cassandra Read was talking to a friend on a cellphone as she drove along winding Canal Rd. in a snowstorm.

Police found no mechanical defects in the vehicle that would have caused the accident, but said it’s likely the phone call was an unneeded distraction in bad weather.

More than 50 countries ban cellphone use in vehicles to some degree, including Australia, Britain and France. In Canada, Newfoundland, Nova Scotia and Quebec ban cellphone use in vehicles, with fines ranging from $115 in Quebec to $400 in Newfoundland.

O’Toole said Ontario has been “nibbling” at a phone ban by amending the Highway Traffic Act to outlaw beginning drivers classified as “G1″ from using cellphones at the wheel.

What’s also needed is a category on police accident reports to indicate whether cellphones or other electronic distractions were factors in an accident, he added. Right now, officers can check off alcohol use or seatbelts but not phones.

For years, the Great Blue Heron Charity Casino in Port Perry, Ont., had a simple policy when it came to cleaning the casino’s bathrooms - male employees cleaned the men’s rooms and female staff the women’s.
That might have remained the case were it not for Joanne Seguin, a part-time washroom attendant who complained that the policy was discriminatory. Her complaint has turned into a five-year battle and so far she’s winning.

Last year, the Human Rights Tribunal of Ontario ordered the casino to give her back pay plus $10,000 for “loss of dignity.” The company appealed, but an Ontario court has now upheld the tribunal’s decision, although it ordered a review of the monetary award. The company is considering one more appeal.

It all started in 2002, shortly after the casino opened. Ms. Seguin was hired on Nov. 6, 2002, as a part-time women’s washroom attendant at $10.83 an hour. She was among 900 employees at the time and worked on weekends. The casion also hired Matthew Welts to work as a part-time attendant in the men’s room.

On Dec. 23, 2002, Mr. Welts was given a full-time job with the housecleaning staff. These crews were responsible for cleaning all parts of the casino, including the washrooms when there was no attendant on duty. The casino had four full-time cleaning teams at the time, each staffed by at least two men and two women.

Ms. Seguin asked Mr. Welts how he got the job since it had not been posted. He told her that the casino needed a man because another man had quit. Ms. Seguin complained to her boss. When that didn’t work, she tried another part-time position but eventually quit in May, 2003, saying in her letter of resignation that she was leaving because of a “breach of trust and conduct” by her managers. She also filed a complaint with the Ontario Human Rights Commission. Commission staff referred the case to the tribunal.

During that hearing, casino officials acknowledged they gave Mr. Welts the job because he was a man. They argued gender was a bona fide occupational requirement for the job since government regulations required the casino to have separate-gender bathrooms.

Adjudicator Jennifer Scott ruled that while those public policy issues were important, they related to only one task of the housecleaning job. Not hiring Ms. Seguin as a housekeeper just because she was a woman constituted “direct discrimination on the basis of sex.” She added that the casino did not consider alternatives such as assigning male staff from one of the other teams to clean the men’s room.

Ms. Scott awarded Ms. Seguin 50 per cent of her lost wages, plus interest, from Dec. 23, 2002, to May 23, 2003. She also added $10,000 in general damages for the humiliation suffered. “I am satisfied that the casino’s failure to even consider Seguin for the full-time housekeeping position affected her self-respect, dignity, self-esteem and confidence.” she wrote.

The casino appealed to the Ontario Superior Court. In a ruling dated Sept. 10, a panel of three judges upheld Ms. Scott’s decision. “While legislation mandates the provision of single-sex washrooms in some circumstances, the legislation leaves wide open the question of how those washrooms should be staffed.” the judges wrote.

The court did refer the monetary award back to the tribunal for reconsideration, ruling that the casino did not have a chance to present its case on that issue.

Ms. Seguin was unavailable and an casino official declined comment. But it now has full-time washroom attendants.

Nokia has finally released the Nokia N96. It’s retailing for over $1000 USD. It’s pretty expensive, eh?

I’m personally gonna skip the N96 and wait for the N85 which is expected to be available in October.

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