Call Us +1-555-555-555

Your Driving Privilege in Ontario

Rights Versus Privilege

As a practitioner, I often attend overcrowded Provincial Offences Courts, where individuals are often charged with driving offences. If you can get past the line-ups to the front, you can often speak to Prosecutor to arrange a deal. At the same time, Justices of the Peace explode into a tirade about how driving a motor vehicle is a privilege and not a right. Reviewing the dockets these days is an amazing test of stoicism. Dockets show one person after the other charged with “driving while under suspension”, among other related charges.


If you plead guilty to driving while under suspension, the Ministry of Transportation tacks on a further six months of suspension on your license. Defenses for this charge are limited, as this offence is considered a “strict liability” offence. That means in essence ‘you should known better’. In theory, all of this makes sense, but in reality this whole concept needs a rethink.


Non Driving As A Disability

I met dozens of individuals who have medical conditions that led to an administrative suspension of their licenses. If people think this only happens to older people, they are mistaken. Virtually all of those I worked with were under sixty five, one being a mere twenty-three years old. Once again, the Ministry enforces this idea about driving a vehicle being a “privilege”, they should understand what this means. Many of those seeking our representation for getting disability support are unable to drive. They have a better than average chance of qualifying for the Ontario Disability Support Program (ODSP) because of this. In many parts of Ontario, not being able to drive is a disability in itself. It can make you unemployable.


Awhile back, one adjudicator looked me in the eye and asked me to convince her of this, citing “plenty of transit service” in the area. I readily produced a large package of advertisements copied from newspaper, Internet or other job posting sites, where literally every job demanded candidates have G license and access to a vehicle. I then ask where this appellant is going to work if they cannot get their driver’s license. If one thinks the state should not provide for these people, think again.


Geography Versus Privilege

In Niagara (and many other places), those “privileged” to drive are the only ones that can obtain the benefits arising from it, such as a job, a decent income and sense of belonging.  Employers have said that drivers are more reliable, with of course no data to back it up. I am told that people with no license likely lost it through drunk driving or criminal activity.  The truth is most license suspensions are not due to drunk driving, but for unpaid fines and medical reasons. Many of my clients were not aware they were suspended because they did not get the letter in the mail. In an average community, including Niagara Region, thirty percent of its residents over the age of sixteen do not drive. In larger communities like the Toronto area, this figure is much higher. Others do not drive because they cannot afford to do so. There are few jobs available to those that cannot or do not drive.


Many candidates are screened out as a certain kind of “riff raff’, a long held belief about workers that do not drive. However, these are discriminatory requirements in place with almost every job, not just jobs where there is a bone fide reason to require a license. As a result, the majority of people with disabilities, students, older persons and low income persons are trapped into this legislated cycle of poverty, perpetuated by this accepted prejudice and legalized discrimination.


Marginalized in Their Communities

It is not just employment where non-drivers are discriminated against, but many are also left out of their communities. In order for a driver to remove their lens of “privilege”, they should leave their car at home for more than a month. While doing so, they should try to carry on their lives without driving. Day to day tasks can suddenly become daunting. The idea of transporting children to school, dropping them off at daycare (which may or may not be close by or at a bus stop), going to work and doing one’s job becomes a struggle. After work, reversing the route and picking up a few groceries for the evening’s meal becomes unthinkable without a vehicle. First, it is not likely that you will get home a reasonable hour, but you will likely be worn out as well. Such workers cannot even dream about going out again to take in a movie or work out at the gym or YMCA. Repeating this Kafkaesque routine everyday soon gets old, whereby one no longer wants to do as much.


Imagine If …

As a non driver, trying to do a grocery run on your way home is out of the question. You do not have the time, bus fare or flexibility in doing so. You will find you have to take up one of your precious weekend days to do this. For those without a vehicle, grocery shopping is a bigger chore than it is for those that drive. You can only go to the grocery store every week or two. Shopping at multiple locations is tricky, particularly without a trunk to store your earlier purchases in. Tough luck if there’s a special in the meat department at one store and a special on produce in the other. You can’t go to both. Drivers simply put the groceries from the first store in their trunk, then go on to the next one and be home in an hour or two.

Research has shown that non-drivers end up spending more money on the same products that drivers do, simply because of this limitation. Once you finish the groceries, you need to get them home. You only have two hands, so taking them on a bus might be impractical, especially if you live a long way from the grocery store. Many phone a cab. Cab companies, while charging an arm and a leg for their service, are not always reliable transportation. People who work shifts, take groceries home, or need transport for medical reasons, often find themselves waiting for quite some time for a cab. CT Scans, dialysis and other non-emergency medical trips are required on a 24-hour basis. It is not unheard of for people to wait at a hospital, a grocery store or elsewhere for two or more hours in some communities to get a ride home.


But It Costs So Much to Drive!

I often hear drivers complain about the cost of gas, insurance, maintenance and parking for their cars. However, it is more likely than not that they have secure, better paying employment that pays them enough to cover expenses. It is difficult for non-drivers to have empathy for drivers over expenses. It costs more on a per kilometer basis for cabs, private drivers, Uber and other private methods of transport. Public transport is sometimes available, but you are trading large amounts of time for the supposed savings. For these reasons, non drivers go to far fewer places than drivers do. In effect, our government, likely through the heavy influence of the auto industry, driving has become a necessity.  This is not just for getting around, but for maintaining one’s dignity and belonging to one’s own community.  It is difficult to develop an attachment to one’s community if they cannot get around in it. Most “free” community events are held on statutory holidays, where the transit service is limited or non existent. Non drivers don’t have the same ability to access the ‘informal markets’ that drivers do: garage sales, Kijiji or a swap service. Many consider if they are giving an item away for free, the person wanting it should pick it up. Paying for a delivery service can be prohibitive.

The community does not accommodate non drivers because they don’t have to. Non-drivers are a low hanging fruit that can easily be swept away with ignorance and disregard.  However, it is more difficult for us to consider the very interests that want to force everybody to buy a car, despite thirty percent of the population not driving and eleven percent in zero car households. I have encountered many members of that eleven percent. Very few are gainfully employed and if so, they are substantially under employed. If they are young enough, they make plans to leave the region to go elsewhere, because they see others older than themselves stuck in their communities.


Privilege Versus Equity

If the Ministry of Transportation wants to maintain its right to decide who can and cannot drive, there needs to be meaningful, effective and reliable alternatives to those that cannot or do not drive. Everybody may not have the “right” to drive, but all should have a right to travel and get around their communities in a reasonable period of time. Employers should not be allowed to require candidates for employment to own a vehicle and drive. An exception would only be if the employer were seeking courier, cab drivers or the like. Employers that find it easy to overlook those that don’t drive should find a way to ensure everybody otherwise qualified for the jobs could work there. It should cost employers to deny access to jobs in this way. If they complain about it being ‘inconvenient’ to have their employee not able to hop in their cars and go wherever, they should pay for this. In other words, they should make it work. Put the onus on the company to ensure all of its staff can do the essential duties of the job. Municipalities should also enforce the human rights code and AODA if cab and private transportation companies want to keep their own licenses.


Graduated Driving As A Barrier

For some who have been non-drivers for a long while, the graduated system in place makes it difficult particularly for older learners.  Younger people who still have access to their parents or older siblings have somebody that could accompany them for practice sessions for the G2 road test. Older people, particularly those that live alone, have less access to somebody like this. Exceptions should be made for those that have driven before or who are older than thirty. If the powers that be think that upgrading RELIABLE alternative transportation for communities costs too much, they need to re-think their policies. Costs are currently downloaded on those who are left behind, those determined by the Ministry not to drive, or those that choose not to drive. It costs money not to work, just as it costs a community to have too many people that cannot access jobs.


Technology Versus Marginalization

The issue about having or not having a driver’s licence may soon become moot. Over the past few years, successful test models of self-driving vehicles have been entering the community. Like Uber, Airbnb and Amazon Prime, this technology will disrupt our community’s current prejudices and way of life. Many people whose livelihood depends on being behind the wheel will soon find themselves marginalized. Those who weren’t able to drive will gain access to their communities. Topics of discussion will become more nuanced and varied, as opposed to the usual complaints about the price of gas, the latest head on vehicle crash or the latest model Ford is putting out. There will be no more communities where two-thirds of the businesses within either make cars, fix cars, paint cars, sell cars, lease cars or use cars to drive people or things around. We will all be forced to pursue other interests. Even some members of my profession that focus on Highway Traffic offences will have to re-think their vision of legal advocacy.

SpinLegal

Two men are shaking hands in front of a building.
05 Apr, 2024
Can a Paralegal Represent Me in a Criminal Matter? When you receive your summons, please tell us exactly what you have been charged with, including...
14 Mar, 2024
Invictus Legal can assist to ensure your professional reputation remains intact. Our aim is to provide you a complete career saving package.
04 Mar, 2024
How Do You Find Information About a Lawyer or Paralegal? Is Your Advocate a Regulated Professional? Click here to learn more!
04 Mar, 2024
There are many times in our lives when we experience problems that are beyond our grasp, where we need to speak to a professional. If your car breaks down, you want a mechanic. If furnace dies, you need an HVAC (Heating, Ventilation and Air Conditioning) technician. If you develop health issues, you turn to your Family Doctor. In the legal system, you have a broader choice of legal representation for many matters in Ontario. In Ontario, you can choose to hire a Lawyer or a Paralegal. As technology advances and we become more and more specialized in what we do, it becomes easier for each of us to understand the value of knowledge. Like your auto mechanic, your family doctor or your HVAC technician, lawyers and paralegals offer specialized knowledge that can help you resolve your legal problems. Invictus Legal LLP is owned and operated by experienced paralegals that have practiced in the province of Ontario. We also connect to lawyers that may be able to assist you in resolving legal issues that as paralegals, we cannot become directly involved in. Many of us begin our searches on Google, which may or may not be a good source to address your problem. Many legal blog sites may include references to situations that are similar to yours, but you may not know for sure until you speak to one of us. Depending on your issue, a paralegal may be the legal professional you need. For example, if you have a matter with any federal or provincial tribunal, each of which deal with a variety of matters (such as disability appeals, human rights, educational issues, criminal injuries compensation or the reinstatement of a license), a paralegal can probably help you. If you are a landlord or a tenant, a paralegal can represent you before the Landlord and Tenant Board. If you have a legal claim of $35,000.00 or under, a paralegal can take your matter through small claims court, or defend you in the same. There are also a number of offences dealing with traffic tickets, suspension of your driver’s license, or offences of other provincial law, that are heard in Provincial Offences Court. Paralegals can represent you there as well. Paralegals can also defend you or resolve criminal charges that are summary in nature and do not include a jail term of more than six months, or five thousand dollars in fines. If you are looking for a divorce, a separation agreement or to seek custody of your children, this is a family law matter. Paralegals at this time cannot help you. Similarly, if you are purchasing a real property, wanting to update a will or to pursue a litigation claim that is much higher than $35,000.00, you will need to seek a lawyer. In certain cases, a claim above $35,000.00 can be dealt with by a paralegal, using the rules of the Small Claims Court, but a case review would be required. The Law Society of Ontario runs a free legal referral service , where once you complete the form, a lawyer or paralegal’s name will be given to you, which will provide a half hour free consultation. Elsewhere on this website, there is an article on what you could do to prepare for your consultation, regardless of what your legal issue is. The more prepared you are for your consultation, the better the advice you will receive. After your discussion with a legal professional, you may decide that you need legal representation. You may only need assistance with part of your issues, but not all of it. This is what we call a limited scope retainer. Our office offers this to many clients. You may also feel comfortable with proceeding on your own, but with the coaching and ongoing advice of somebody. In certain cases, we can help you with this. In any case, your consultation should provide you with clear options as to what your rights and obligations might be, and what possible methods of resolution might be available to you. Professionally, Invictus Legal LLP provides services in many advocacy areas. including Small Claims, Landlord/Tenant, Provincial Offences (including Highway Traffic Act matters), as well as other Tribunals (such as Human Rights Tribunal of Ontario, Workplace Safety and Insurance Board/Workplace Safety and Insurance Appeals Tribunal, Criminal Injuries Compensation Board, Social Benefits Tribunal, among many others). We do not accept all clients within our chosen areas of practice, as the fit has to work both ways. As we have practiced and grown in our profession, we do our evaluation of cases before us based on chances of success, complexity of the matter, private interests (of the client) and public interest, as well as numerous other factors. When should you choose to seek legal assistance? Early. As soon as you identify a potential problem. This is very important because there are sometimes tight time frames within which you must file notice of action or a claim. You can get a free consultation. Most legal professionals will offer one. It is also available through the Law Society Referral Service.  Invictus Legal LLP
Short Term Rental
04 Mar, 2024
Invictus Legal LLP has a record of working with landlords and the local municipal governments to ensure you get your license.
29 Feb, 2024
In Ontario, if you have been served a claim against you, don’t fling it in the drawer and forget about it. It is time to defend yourself. Lawsuits have specific deadlines you need to pay attention to as a defendant. Time is limited, and you need to take action. You need a defence. Rule 9 of Rules of the Small Claims Court (O. Reg. 258/98) states, “a defendant who wishes to dispute a plaintiff’s claim shall, within 20 days of being served,” so you need to take action. It is time to call Invictus Legal LLP. Time to build your Defence The type of claims against you can include any of the following, plus many more causes: Debts, or money owed to another person. Your negligence caused injuries. Improper installation or repairs. Dishonoured cheques. Repair and storage liens. Property damage. If you have been served with a lawsuit through the Small Claims Court, probably several questions run through your mind. Do I need legal representation? The answer to that question depends on the complexity of your case. The concept of a Small Claims Court is one where the parties take or defend the action themselves. That said, while the dollar figure claimed is small, there can still be complex legal issues to be decided. This is where you need a legal representative. It is best to seek legal help to at least understand the legal complexities of your case. Is it time to hire a professional litigation paralegal from Invictus Legal LLP? Remember, court staff cannot provide legal advice, but they can help you understand what forms you need to complete and when to submit them. As Invictus, our team will help you manage this process. Limited Time You only have a limited time to act, a limited time to serve and file your defence. Even with time limits, Invictus Legal LLP is here to help you build a solid defence. Need to know what the rules are? That is exactly why you should engage our team. Crafting a defence takes special skills. Not only is it essential to deny the other side’s case, but it is vital to demonstrate how the legal principles follow your arguments. Then there is another question, do you have a claim against the person who sued you? This is often called a counter-claim, although the correct legal term is a defendant’s claim. You should seek legal advice when creating a defence or a defendant’s claim. Our team at Invictus Legal LLP is here to help you. The best defence is always a strong one. Our team is fighting for your rights. We specialize in writing strong defences and testing the validity of the Plaintiff’s claim.
29 Feb, 2024
Should I Sue in Small Claims Court? Something happens. You are fired from your job, purchase a car from somebody that did not actually own it or loan a friend some money they did not repay. Your first thought is to file a small claims suit against the person you feel owes you money. Do I Have A Case (for Small Claims Court)? As paralegals, we litigate a lot in small claims court. Small claims court can deal with many, but not all, claims under $35,000.00. Many times, another body, such as the Landlord and Tenant Board or License Appeals Tribunal have the jurisdiction to deal with your claim. In many cases, these other forums must be the place you file your claim and not small claims court. Paralegals can litigate in these other forums and we can tell you if the small claims court does not have the jurisdiction to help you. Most important, note that many types of actions cannot be decided in small claims court, even those that are not otherwise in the jurisdiction of a tribunal. Some examples of cases are listed below: If You Want to Force a Party to Do or NOT to do Something You cannot take somebody to small claims court to seek what is known as injunctive relief. If you want to do this, you generally need to file what is known as an APPLICATION to the Superior Court of Justice. Paralegals do not get involved in these kinds of cases. For example, if you want somebody to amend or take down a website, sell their condominium or force a company to re-issue shares to an aggrieved shareholder, these are heard in Superior Court. Small claims court, however, can order under limited circumstances something called a Writ of Delivery. This is usually an order for the return of a specific object, such as a motor vehicle, a musical instrument or even a family pet. If the Basis of Your Claim is to Order Specific Performance This court cannot order specific performance of a third party. Apart from enforcing a settlement agreement that came out of small claims (or a related forum that is enforceable in small claims court), this is not possible. However, you can seek damages for breach of contract on many grounds (unjust enrichment, breach of contract, interference with contractual relations). But, a small claims court will not order your employer to give you your job back, nor will they order the company next door to stop polluting your backyard. Issues That Fall Under Other Statutes with Legislated Jurisdiction You might be contesting something under the purview of the Family Law Act or disputing the essence of an estate. This is also done in the Superior Court or Ontario Court of Justice (Family Division). The small claims court will not give you your children back. This court will not resolve issues of equalization between you and a former spouse. You cannot get appointed to be an administrator of an estate, or set aside a will to dispute its meaning. However, if a will clearly states that you are entitled to monies under $35,000, you can sue the estate trustee for this money if it is not distributed in accordance to the will. Construction Liens Construction liens up until recently were strictly under the jurisdiction of the Superior Court. However, this is changing by way of the new Construction Act, where small claims court can be the forum to file such liens of value of $35,000 or under in jurisdiction. This is an evolving process , whereby a dispute resolution process is expected to be fully in place by October 2019. This list of exceptions is not exclusive. Contact our office today to see if your case fits the small claims court or another tribunal where we practice. I Have a Claim Under $35,000. Should I Sue? When we determine if we will take on a file, we consider a number of elements in your claim. First, do you have or can you easily obtain sufficient evidence to bring forward your claim? Such evidence would include a contract, witnesses, invoices, audio or video recordings, and photographs, among other things. Second, can you directly connect the party you wish to sue as being liable? Sometimes the answer is easy. The party is a former tenant, a person to whom you loaned money, a former employer or a municipality. Other times, it might not be as easily, particularly when a third party caused the party you believe is liable to commit the act. Third, can you easily find the person you wish to take to court? This involves knowing the proper name, spelling, last known address, possible occupation, among other things. Our office can assist you in finding the person to some extent, but there are other factors you need to consider. Does this person have any assets or sufficient income to cover the claim? The person may own their own house, but may have several creditors ahead of you in line if you were to win your case. They may drive a late-model vehicle, but they may be leasing it. Is your party working? Do you know if they earn sufficient income to cover your claim, even if you win? Is your party possibly bankrupt or involved in a consumer proposal? This information can be determined through our office to help you determine if it is worth your money and time. Does My Claim Have Merit? This is something that needs to be determined. This depends on the type of case you have, what evidence and if any limitation periods apply. In general, civil suits have a two-year limitation period, but this can differ in some cases. Often, the answer to whether your case has merit can be determined right away. As experienced litigation paralegals, we have seen many different types of cases over the years and know how the courts will see them. When faced with an unusual situation, we conduct case law research to determine if our arguments would be on point. It is important to go to court with a case that has strong merits. Some people have come to our office to ask us to sue just to force the other party to back down on something. Or they want to sue for the principle. As we have been in court many times, we know that courts penalize parties that bring frivolous, vexatious and meritless claims. Even a case with good merits can be brought forward and lost, mainly because of the credibility of witnesses, quality of evidence and so forth. Even if you believe the other party might get intimidated by your lawsuit, many will seek the advice of counsel and call your bluff. My Case Has Merit, and I Want to Proceed. Now What? If you wish to proceed with a meritorious claim, Invictus Legal LLP can assist you in many ways. If money is an issue, we can complete what is known as a limited-scope retainer. That means you might want us to act on the part of your action, but not all of it. We can draft your Plaintiff’s Claim, attend a settlement conference with you if you are already in court, or we can help you negotiate a settlement. The costs of full representation will also be discussed with you, as payment plans are available if required.
28 Feb, 2024
Introduction If you are reading this, you might be wondering if what you are experiencing can be considered “workplace harassment” or “workplace bullying”. Most of us heard about it discussed in the news, reports of people getting charged with harassing somebody they worked with, or heard others complain about getting “harassed” at work. Maybe you are experiencing something at work or in your workplace that is bothering you, worrying you or creating a major sense of tension. First, let’s review what workplace harassment is. What Workplace Harassment Is and What It Is Not Depending on where you look, workplace ‘harassment’ has many different components. There are many laws that cover different forms of workplace harassment and obligate one’s employer to address particular types of harassment. For the sake of simplicity, we will not be covering the details of various acts and leading cases that helped define where the line is drawn between ‘workplace discipline’ and ‘workplace harassment’, although we will continue to provide further articles under the heading of Employment Law over time to assist readers in understanding issues about “workplace harassment”, among many other issues connected to employment and your workplace environment. On its own, workplace harassment and bullying is not: Providing a less than stellar performance review; Providing constructive criticism about how you are carrying out an essential duty of your job (if there is something that can be taught, changed or improved); Requesting that you perform some aspect of your job that is clearly within your job description and is reasonable for you to carry it out at the time; Providing progressive discipline for performance or conduct issues (e.g. lateness, absenteeism, missing deadlines, conduct on the job or in situations where it may be reasonable that you are representing the company, such as at a conference or perhaps not meeting minimum expectations after given time to improve); Disagreeing with you about a key aspect of your work and deciding that the company will not support your position (within reason); and Actual disciplinary or termination proceedings with cause, or after a series of reasonable warnings, etc. However, many of these elements may be part of an environment where you are also subjected to ongoing harassment or bullying, examples of which are outlined below. In general, workplace harassment is defined as an engagement in any act, course of vexatious comments or conduct towards a worker that the one engaging knows or reasonably should know that the act, comments or conduct is unwelcome to the worker. To define this conduct as harassment, the conduct, comments or actions should be something that is repeated, persistent or even escalating over time. An employee’s attempt to stand up to the perpetrator is often met with threats against them in their job, such as disciplinary action or outright termination. Harassment can appear in different forms, such as a sexual nature, particularly if the person engaging in this conduct is in a supervisory or influential position over the worker’s position with the company. It doesn’t have to be a direct supervisor, but it can be anybody that has the ability to adversely influence the course of one’s future employment. However, there are many other forms of harassment that might not be sexual in character. For example, your employer may openly attack your work in front of colleagues, set unreasonable standards on your work, deliberately leave you out of discussions concerning your job, or spread unfavourable and untruthful gossip among your colleagues about you. Some of this harassment can cross the line into bullying, examples of which can be where your supervisor or manager unilaterally and significantly change your working conditions, e.g. adding a major commute you did not have before to your “new” position at another location they suddenly want to send you (with no added compensation or appropriate notice/discussion), removing significant areas of your authority that you previously had (and unilaterally giving these decisions to somebody else), constantly criticizing or berating your work or professionalism in a public manner (e.g. in front of coworkers or other colleagues). Other forms of harassment and bullying can be simply allowing or condoning coworkers to ostracize you or create a “poisonous” environment. At times, there can be outright violence in a workplace, condoned by the employer. Again, the telling characteristic of this type of harassment is that it is not a single incident, but something that is often repeated and at times, escalating over time or when the perpetrator is challenged. It is evident that you are likely being harassed and bullied that if you challenge the conduct of the individual concerned, that reprisal from the perpetrator is often immediate and severe. For example, if you are being exposed to constant criticism, belittled and many of your responsibilities unilaterally removed, and you choose to stand up to the perpetrator or to their manager, your job is suddenly at risk or more severe harassment is engaged in by the perpetrator or others in an attempt to get you to quit. In addition to protecting you from (and not engaging in) harassment and bullying, your employer is also obligated to protect you on the job or worksite from others that may interact with your workplace, legitimately or otherwise, who can impact on your personal safety and security. Your workplace is also responsible for setting policies and procedures in place to prevent others from coming onsite to harass, threaten, injure or otherwise cause distress to you. These people can include angry, disgruntled customers, an ex-spouse seeking to confront you at your workplace, or others whom may intend to injure or harm you and/or others at the workplace. Your workplace should also provide training to all of its staff as to how to handle people that may be disruptive, potentially violent onsite or even over the phone or other communications. I Believe I May Have Been Harassed/Bullied. What Can I Do About It? Obligations of Employers All businesses must have a policy that protects its workers and the workplace (which can also include work being done for the employer off site as well) from harassment, bullying and potential acts of violence, and in companies of a certain size, a step by step protocol needs to be set out to deal with the alleged harassment, bullying and violence. In many cases, an employer can retain the services of a lawyer, a labour consultant or human resources consultant to conduct a workplace investigation. How a workplace investigation is carried out is very specific in how information is solicited and what the rights of different parties are during such an investigation. In general, an employee can utilize the steps spelled out in the workplace policy. Such a policy should be known and made available as needed to all staff and supervisors and managers. The contents of such a policy might vary considering the size of the company, number of locations, nature of its business, organizational structure and areas of vulnerability. Areas of vulnerability are where workers can be more prone to be exposed to violence (e.g. working alone at a convenience store, protecting valuable or sensitive property, providing transportation of persons or goods, working with a specifically volatile client group such as persons with addictions or mental illness, etc.). Dealing with harassment and bullying also needs to be dealt with in a companion policy, as such incidents are more likely to happen within the workplace and are reported internally. If your employer does not have such a policy and is of a certain size or larger, a complaint can be filed with the Minister of Labour. The Ministry can investigate the lack of a policy and/or relevance of a “policy” for workplace harassment, although they could not make orders as to the specific form and content of such policy or the merits of any particular complaint a worker may have for such a policy to be applied to. If your employer does have a policy about harassment and bullying, you may wish to follow its protocol. Once the initial report or complaint is filed, your employer must take steps to follow through on your complaint by either investigating it or bringing in an outside party to assist with this. After the investigation is complete, you should be made aware of what the findings were and what will be done, if anything. If you have a union representing you in your workplace, you should also file a grievance. Your union would also be familiar with your workplace policies and unionized workers have the right to have a union representative attend any meetings they have with management with respect to any workplace issue. A worker can insist on having their union representative in attendance before any such meeting starts. A union representative can also assist you with filing any grievances that might arise from alleged violations of this policy. A later article will detail how to deal with your union and what happens if they fail to help you, or if they become part of the harassment. What Can I Do if I Am Not in a Union? If you are not in a union, you need to do the following: 1. Do not quit or resign from your job. If you quit or resign at this point, it will be harder to prove your case. You may also lose access to extended termination pay and other payments. 2. Do seek legal advice immediately. This will help you protect your rights in the event you might be immediately put at risk. 3. Continue to go to work as long as you can tolerate it. While you are there, document everything. Start a log. Get copies of any emails sent to you, sent by you and other letters or documentation that you have access to at this time. Keep a timeline of what happened, dates it happened, who was involved, etc. 4. Keep your files and copies of emails, documents, your personal work reviews, etc. at home and not at your workplace. 5. If you can no longer tolerate your workplace, you need to go on leave. Your employer cannot stop you from going on “sick leave”. Make sure you visit with your doctor, get appropriate medical care and a request for sick leave for a specific period of time (due to stress at work, whatever). Apply for any benefits your employer offers, such as short-term disability (as you are probably very distressed and mentally fragile if you have to leave the workplace situation). If your employer doesn’t offer short term disability benefits, apply for EI sick benefits . 6. If you need more time away from work, your doctor can extend your leave. 7. If your employer decides to terminate you, or harass you while you are on sick leave or tries to make things further difficult for you, they are only getting themselves deeper into trouble and you might be able to claim additional damages in a claim against them. However, your employer can inquire as to a return date if your doctor’s stated leave period is almost up and you did not renew. Cooperate with your benefits provider and/or EI as to any further information they require. What Happens Next? Sooner or later, something will happen, where you will need to seek legal help. You can file an immediate claim for constructive termination. The courts have allowed claims for “constructive termination” in situations where the employer does not actually terminate the employment relationship, but the situation is dealt with circumstantially as though you had actually been fired. This happens in defined cases (as set out by the courts) where an employee has been bullied and harassed to the point where it is impossible for the employee to continue working at their employment. If you wish to pursue this angle, legal advice is necessary. If you are in a smaller workplace and the only “manager” is your boss and your boss is doing the harassing and bullying, there are other steps you may take. If you followed the employer’s protocol and policy with no resolution to your issue, you have other options as well. One might be a complaint to the Ministry of Labour, but as stated above, the inspectors are only empowered to ensure your employer has a policy that deals with harassment and bullying, but will not ascertain its effectiveness or adjudicate the merits of your case. However, if you believe your employer violated any specific area of the employment standards law, such as unpaid wages, overtime, refusing personal days off, etc. and has threatened you or committed any type of reprisal against you for trying to enforce your rights, you can complain to the Ministry of Labour about the specific violations themselves (e.g. such as not getting paid for overtime, not re-hiring you after a pregnancy leave, refusing personal leave days, etc.). If you are unsure if your employer is following the law, contacting the Ministry might be a good first step. If you wish to proceed this way, it might be a good idea to seek legal advice prior to filing a complaint of this type because you may be barred from other types of litigation. If the workplace bullying or an act of violence at work led to significant mental and psychological distress, you may also have a separate claim under the Workplace Safety & Insurance Act (WSIA) (as some types of mental distress claims can be deemed eligible for compensation under this Act). However, a claim under this Act arises from very specific circumstances and legal advice is necessary if you are considering a claim under WSIA. If you believe that your employer has harassed or bullied you because of a specific personal characteristic, such as your sexual orientation, your mental or physical disability, your gender or for related reasons, you may have a case under the Human Rights Code. If the nature of the attacks do not appear to be related to anything on human rights grounds, but are still nevertheless distressing or even lead to constructive or actual termination, there is also the potential for civil litigation in court.  Because employment law and the different ways of enforcing your rights is very complex, it is best to seek legal advice to discuss which avenue would work best for you. This is also important because many times, you are not allowed to have your case heard through more than one forum. For example, in most cases if you are taking your employer to court, you cannot also go through another avenue such as Employment Standards Branch. In other cases, it may be advisable to use the Human Rights Tribunal if you feel the major concern is that you were harassed or discriminated against on the basis of personal characteristics, such as your gender, racial/ethnic background or disability. Because of varying limitation periods, notice requirements, as well as other procedural issues, it is best that if you feel your case might fall under ‘workplace harassment’ or ‘workplace bullying’, you contact us at Invictus Legal LLP to review your case with you in person.
By Davinder Singh 28 Feb, 2024
What is the Ontario Disability Support Program (ODSP)? ODSP is a program of the Ontario government that helps to financially support persons that, due to a disability, cannot work or earn enough to support themselves. It provides both a basic income as well as health benefits, such as drug coverage, dental and certain other benefits that cover the needs of people with disabilities. Many people with disabilities that are legitimate have difficulty getting this benefit.  To get ODSP, you need to go to your local Ontario Works office, or in some cases, directly to ODSP, to be financially assessed. This means you need to find out first if you are “poor enough” to get ODSP benefits. This would include any earnings and assets of your spouse, if you have one, or any of your children (who live with you) if they are over eighteen years of age and not in school full-time. Some changes have recently been made to the program that allow more assets to be retained by the “benefit unit” (which is usually the total of people living in your household). There are also other exemptions, where even if the particular asset is worth more than what is allowed on ODSP, it won’t be counted as an asset when you go in to be assessed financially. These limits and exemptions are relatively complicated, so it is best to ask somebody with legal expertise in this area before you attend a financial assessment meeting. After your financial assessment meeting, you will be given a Disability Determination Package, which must be filled out by your doctor, psychologist, nurse practitioner, audiologist (for deafness) or occupational therapist (for various physical limitations). Most people go to their family doctor or a specialist who deals with their primary health concern. There is also a Self-Report section for you to fill out to add your perspective as to how your health and disability issues affect your life. I strongly suggest people attempt to fill this section out, but only after the medical provider completes their section. After this is done, you mail in your completed and signed Disability Determination Package to a department of government called the Disability Adjudication Unit (DAU). This department is headed in Toronto and staffed by people with health assessment knowledge. Many are OTs, nurses or other medical professionals. They review your application forms and decide if you meet the criteria of being a “person with a disability”. If you do meet these criteria, there is no need to contact us, as your local Ontario Works or ODSP office will contact you and start you on the program. You will be entitled to retroactive pay making up the difference between the monies you were receiving before your application and what you will be getting on ODSP. These monies go back to when your completed application was received by ODSP. For example, if your application was received on May 20, 2022, your retroactive pay will go back to June 1, 2021. What if I am turned down for ODSP Benefits? This happens quite frequently, even for people with serious or substantive disabilities. This is because all the staff at the DAU have available to them to make a decision is the medical submitted by your doctor. You would receive a letter explaining that your denial was because “you are not found to be a person with a disability”. This means you have up to thirty days to apply for what is called an “Internal Review”. This is also sent back to the DAU, which will pick another adjudicator who was not involved in the first decision to look at your application and then see if they support or overturn the original decision. The decision is overturned only a few times because, at this stage, there is usually not a lot more medical information to submit. After the Internal Review is completed, you will receive a letter with a decision. If you are still turned down, then you must appeal the decision to what is known as the Social Benefits Tribunal. The Social Benefits Tribunal is made up of people who are knowledgeable about the law regarding ODSP and disability issues, and are independent adjudicators. They do not work for or get paid by ODSP to work for SBT. If you appeal to this Board, you will get a hearing in about a year’s time, where you and preferably, a legal representative, can appear before it to argue why you should qualify for ODSP Benefits. The benefit of having a legal representative assist you at this stage is that they know about the time frames in which things need to be submitted, as well as what kinds of arguments to make that are more likely to get the Tribunal to decide in your favour. Many times, your legal representative will secure documents from your medical and health care providers, as well as provide a summary or further information about your disability (particularly if you have an unusual health condition). How can we help you with your ODSP Claim or Appeal? Invictus Legal LLP has a representative with more than twenty years arguing before these tribunals and has been largely successful in helping people obtain benefits. Give us a call today if you are appealing a decision by ODSP at (905) 688-5598. We also assist people who are already on ODSP fight other issues they might face over the course of time they are on ODSP, such as overpayments, arbitrary reductions, suspensions or cancellations of benefits, as well as numerous human rights related issues tied to ODSP rules and regulations. We have been involved at the legislative and political level as well in making changes for not only ODSP, but for the whole system as to how people with disabilities are treated by society.
28 Feb, 2024
What is Canada Pension Plan – Disability? If you have worked for some time, it is likely that you have contributed through your employer or at year end tax time to CPP. For most of us, this is supposed to help us with our retirement. However, CPP also offers a program for people who become “severely disabled” before they retire. This program is only for those who have contributed enough over the years (and there are specific rules for how these years are counted and how “drop out” periods are dealt with, such as years you might have spent at home raising children). The amount received is tied to how much has been paid into the program by the person making the application. To qualify, your mental or physical disability has to be “severe” and “prolonged”, which means it is more difficult to get accepted for CPP-D than it might be for some other benefits, such as ODSP. For CPP-D, you can receive full benefits, regardless of how much money you have or assets. However, your payments are limited by your contributions by law, and it does not include benefits, such as drug coverage, glasses and dental care. You can also live anywhere in Canada with CPP-D benefits (sometimes even other countries). However, “severe” means that your disability prevents you from regularly working in ANY remunerative employment, regardless of what type of job it might be. If you worked in a white collar job, and now with your disability you are only able to do a part-time light housekeeping job, you still won’t qualify. While your age, education, and certain other factors do count, they do not outweigh the medical evidence you have for your disability. “Prolongued” means that your disability is long continuing (likely permanent or long standing) or will likely result in your death (e.g. terminal cancer). How Do I Apply for CPP-D Benefits? You can call the Toll Free number on the Service Canada site or you can obtain an application from any Service Canada location. You must be able to verify your identity, etc. with certain documentary requirements. With your SIN number, Service Canada can track down your contributions to determine that you have paid enough into the system to be able to make a claim. Once that is determined, the CPP-D Application is divided into two parts: one for you to fill out, and the other for your doctor to fill out. With your application, you should attach as many medical records as you have that help point to the severity of your condition and your inability to work. You must also show how you have tried to continue to work or to find other work that is “lighter duty”. After your package is completed, send it to your nearest regional office (listed in the CPP-D package) and wait. What happens if I am turned down for CPP-D Benefits? Your first denial will come from Service Canada. You need to reply within a certain time frame by sending any new medical information and arguments as to why you should qualify by a certain date to their Reconsideration Unit. This is where another reviewer will take a look at your file and with new evidence, determine if they will uphold the original decision or change it. If you are denied CPP-D Benefits again, your appeal is to the Social Security Tribunal’s General Division. This is where you fill out a completely different form and start your appeal at the Tribunal level. Again, the Tribunal is an independent body that includes adjudicators that are not part of Service Canada that made the original decision, and these people are trained in the law that applies to CPP and other federal benefits. At this point, you should get legal representation as it can be tough to argue your own inability to work as this has to be shown objectively, and meet the definition in the law. There are different ways the Social Security Tribunal holds its hearings: videoconferencing, in-person or by telephone. Your best bet is to have an in-person hearing or one by videoconference, where the adjudicator holding the hearing and you can see and speak to one another in real time. This way, the adjudicator will be able to observe you, particularly if your disability affects your appearance, the way you walk or your need for assistive devices. Once this hearing is over, its decision will be mailed to you and your legal representative. If you are turned down again, your next option is the Social Security Tribunal Appeals Division, which is usually handled in writing and if they find in your favour, they may order a new hearing or just change the decision to deny you benefits. Hearings before the SST should be attended with a legal representative to improve your chances of getting accepted. Invictus Legal LLP has competent legal representation available for prospective appellants for CPP-D. We have been handling this for almost twenty years.
More Posts
Share by: