I am often asked by clients whether or not damages would be higher for people that are more senior -  given that they do not have many years to live. It is understandable that if one is afflicted by a serious orthopaedic injury  the remaining years of life may not be that enjoyable. The courts in the past have been generous in formulating pain and suffering damages for people who are in the latter half of their lives by sometimes applying an informal “golden age doctrine”.  It makes sense to the common client but any good lawyer would obviously take the position this theoretical doctrine  is not an easy argument.  It is understandable that a person in their advancing years may be more seriously afflicted by the impairment in movement and ranges of motion than perhaps a person in their younger years.  The counter argument by defence lawyers, which also makes sense, is that damages should not be paid out in excess because a person is simply "not going to live long".   The rationale is that if you have a 90 year old woman that falls and breaks her pelvis - the damages should not be in the same range as a 37 year old plaintiff - the money will simple be funnelled into the estate and gifted to a beneficiary who was not injured....but will benefit from the payout.  I try and stress that it is important to bear in mind that as one advances in life one’s pleasures and activities particularly do become more limited with any substantial impairment . Acitivites are limited and any type of movement which a person can no longer undertake becomes all that more serious on that account.  How can it not be?

Therefore you can assess appropriate pain and suffering awards from two different perspectives. So what do you do? The argument would be presented by medical evidence and it would be up to a jury to decide which argument to accept.  We would normally argue that if there is no pre-exisitng injury then an orthopaedic  injury would  obviously interfere substantially with a senior citizen’s enjoyment of life during his or her remaining years. However when comparing awards, it is understandable that one must give way to the factor of age and that a younger person will suffer the loss of amenities over a much longer period of time.  The argument therefore is clear from two perspectives and the answer to this quandry  I would think is that it depends on the injury, whether anything is pre-exisinting, and the activities that the plaintiff participated in before the date of accident.  If there is a plethora of activities such as volunteer work, work at the legions, golf, walking with friends, and anything else to do with staying fit and healthy than perhaps the damages may be affected to a certain degree in comparison to the general range of damages for that same injury. If you are plagued with pre-existing debilitating conditions - the compensation for pain and suffering will be reduced accordingly.

We are personal injury lawyers in Hamilton, personal injury lawyers in Burlington, personal injury lawyers in Oakville and personal injury lawyers in Milton. If you are an elderly person that has been injured by the fault of someone else, or if your loved one is an elderly person that has been injured by the fault of someone else, please do not hesitate to contact the law offices of Haber and Associates and I would be pleased to help answer any questions that you may have.

Matt Lalande

Now that the limit for Ontario Small Claims Court will be increased to $25,000.00 Haber & Associates Litigation Lawyers will be able to assist you with your litigation. If you need a small claims trial attended to please call Matt Lalande and he will arrange for a lawyer or clerk to attend with you on your behalf to represent you, no matter what side of the case you are on. Haber & Associates will most likely assist your at your trial for a fixed fee.

As of January 1 2010 the limit for Small Claims Court will increase from $10,000 to $25,000 to allow individuals and businesses to resolve more claims in a simple and inexpensive way.  This was a fantastic idea idea. This will improve access to justice for all Ontarians.

 A few things are important to note. Claims filed in the Superior Court of Justice before January 1, 2010 for $25,000 or less will NOT automatically be transferred to the Small Claims Court. If you want a transfer of your case from the Superior Court of Justice to the Small Claims Court, after January 1, 2010, you can take steps to ask for this to happen.

What if you case has already been issued in the Superior Court and you want your case to be heard in the Small Claim? There are two ways claims can be transferred from the Superior Court of Justice to the Small Claims Court. 1) If your trial has not started and all parties in the action agree to the transfer, you can ask the local Registrar of the Superior Court of Justice to transfer the action and 2) If all parties do not agree to the transfer, you can bring a motion in the Superior Court of Justice and ask the court for permission to transfer your case. With the written consent of all parties you can ask the Registrar of the Superior Court of Justice to transfer your case, and by filling out a  requisition (Form 4E).  You would then pay the court fee to transfer the court file to the Small Claims Court ($75 fee).  If the parties do not agree to a transfer you can bring a motion in the Superior Court of Justice to ask a Judge to transfer your case to small claims.

 If you filed your claim for under $10,000 before January 1st 2010, you can change the amount and increase it up to $25,000.00. You would serve and file an amended Statement of Claim. If you don't have consent of the other parties then you would needd obtain an Order to do so and if you do have consent then you would file a request with the Clerk.  If you case is more than 30 days away you can do this. If it is less then 30 days away, you can bring a motion to ask the Court to allow a shorter time for filing and serving your Amended Plaintiff's Claim. If all the parties agree to you amending your claim, you can ask the court clerk to make an order on consent of all of the parties.

Also, despite the monetary increase, there are no increase in Court fees.

If you have debtor creditor matters or any type of litigation that you would like trial representation for please do not hesitate to call Haber & Associates and ask for Matt Lalande. He will direct you to someone at Haber & Associates that will be able to help you.

We will be able to help in the following jurisdictions:

Ontario Small Claims Court
Hamilton Small Claims Court
St-Catherines Small Claims Court
Burlington Small Claims Court
Oakville Small Claims Court
Toronto Small Claims Court
Milton Small Claims Court

 

If you are having your will done by Haber & Associates it's a good idea to know and understand a few key basic terms that you will probably hear us mention during our meeting.  Firstly, the law of wills is concerned with the validity of dispositions that will take effect upon your death and are contained in your will.  Succession is what happens to one’s estate or wealth upon his or her death.  The right to dispose of one’s assets is a qualified right meaning one cannot leave out his or her spouse or dependant children.  The law of succession concerns itself generally with all transfers of property from one generation to another.  

Probate serves as the proof to financial institutions, financials advisors, the Land Registry Office, insurance companies and other involved processes from a will that has been certified by the Superior Court of Justice and that your executor is authorized to represent your estate.  When you pass away your will gives legal authority to deal with your estate to your executor and although he/she is legally entitled to do so, when it comes time to redeem or transfer certain assets registered in your name probate is sometimes required.  This serves as proof to the examples above that your executor is authorized to represent your estate.  Sometimes you will hear the term estate administration tax.  This is the same as probate.  The actual grant of probate in Ontario is known as Certificate of Appointment of Estate Trustee with a Will.  Probate tax planning is very important especially with larger assets because probate taxes are usually calculated on the value of the gross estate.

A will is a written, typed or printed document made by the person who wishes to dispose of his/her property on his/her death and executed in the manner prescribed by the Succession Law Reform Act.  It only has effect upon one’s death.  During one’s lifetime the will is ambulatory and revocable.  It is inoperative until one dies.  

A codicil is a very common testamentary document which supplements, explains or modifies a will bearing an earlier date.  Codicils are normally only used for minor adjustments to your will.  If major changes are required, then it is customary for Haber & Associates to make a new will for you.

A testator is you.  It is a person who makes the will.  If one dies testate, it means that you have a will that will be valid and upheld after your death.  If you die intestate it means that you do not have a will or it is invalid.  Intestacy is much more expensive and complicated.  The Succession Law Reform Act applies a “statutory will” directing who is entitled to the estate.  A personal representative of the deceased is either an executor (estate trustee with a will) or an administrator (estate trustee without a will).  An executor is a named person in the will or codicil to administer the estate, while an administrator is a person appointed by the Court to administer the estate of a person who died intestate or without a will.  

A Certificate of Estate Trustee is a document issued by the Court after death which authenticates the Office of the Estate Trustee.  If an executor proves the will he/she receives letters probate (Certificate of Appointment of Estate Trustee with a Will), which will serve as evidence to the world the executor’s title.  If an administrator proves the will, he/she will receive letters of administration (Certificate of Appointment of Estate Trustee without a Will).  On intestacy persons who are entitled to share in the Estate are determined by statute.

The above are some key terms that are good to know when you make a will.  If you have any questions, please do not hesitate to contact Matt Lalande by phone or email to discuss the drafting of your will.

Of review of the November 2009 Court of Appeal decision of Brien v. Niagara Motors Ltd is an interesting read. In this case the appellant employer raised three grounds of appeal from a wrongful dismissal decision which awarded 24 months severance plus Wallace (for bad faith) damages of two months.

Firstly, the employer argued to the Court of Appeal that the trial judge erred in treating the respondent employee as a 23-year employee even though there was a two-year gap in her employment after 6 years when she left to have her second child.  The employee had been invited back to work for the employer after two years.  She had exhausted her maternity leave and was not working. She did not return for family reasons.  She was not looking for another job, nor did she work anywhere else within the 2 year gap. She was reintegrated into the employer's employment as if she had never left. The Court of Appeal noted that, for example, she immediately provided with a 2 weeks vacation within the first year without first working for 12 months as a new employee would have to. For these reasons, the COA did not give effect to this ground of appeal.

The second issue is whether the two months award for Wallace damages ($8,826.56) can survive the decision of the Supreme Court of Canada in Honda Canada Inc. v. Keays, 2008 SCC 39, which was released following argument but before the reasons in this case were released by the trial judge.  For those who don’t know – the Honda case gave the employment landscape quite the tilt with respect to damages.  The Supreme Court Re-formulated the legal principles surrounding both the availability of “Wallace damages” and the manner in which they can be awarded.  The appeal was allowed on this ground. Although the appellant's conduct in wrongfully alleging misconduct against the respondent was improper, any claim for punitive damages based on that conduct was abandoned before the trial.

While the respondent's misconduct in this respect could have led to a proper award of mental distress damages as defined in Keays, the mental distress that the respondent suffered upon her termination and the manner of that termination was not of the nature and scope to qualify for compensatory damages in accordance with that decision, as the respondent did not seek any medical attention, professional assistance or undergo any therapy for her mental distress

The third ground of appeal is based on the double counting of the Employment Standards Act severance payment of $20,240. This probably meant that the employee was paid statutory termination pay that was also counted into the payment in lieu of notice.  The lawyers agreed to remove this.

In the result, the appeal was allowed in part, and the damages calculation was reduced by $8,826.56 plus $20,240.

This case may be a minor precedent setter with respect to calculating damages in cases where the employee takes a stretch off work and is re-hired. In the long run, does it really matter? It is all circumstantial and factual based but it is good to remind ourselves of these cases.

If you are in the Halton regions and your company needs employment assistance please do not hesitate to give Haber & Associates a call at 905-639-8894 and ask for me, Matt Lalande.

The proposed treatment for sales of residential housing in Ontario under a harmonized sales tax (HST) is an important issue for the purchase and sale of your home. The HST at 13%, composed of a federal part at 5% and a provincial part at 8%, would apply to a builder’s sale of a newly constructed or substantially renovated residential complex, including a multiple unit residential complex (e.g., an apartment building). The sale of housing that has been previously occupied by an individual as place of residence and that is exempt from GST would also be exempt for purposes of the HST. The definitions in the Excise Tax Act that relate to housing (e.g., builder, residential complex, residential unit, residential condominium unit, substantial renovation) and the CRA’s current policies regarding the application of the GST to housing, would generally apply under the HST. For more information please download the Question and Answer sheet below.

If you are buying or selling your home and you required more information on the harmonized sales tax please contact Ryan Carson at 905-876-3500.

HST - New Housing Rebates.pdf (344.02 kb)