musings from a new legal apparatus.
Have you heard of horror stories that upon purchase of a new home, a couple may encounter that there are no appliances. Not just a microwave or toaster oven, but the fridge, range, washer and dryer, all gone?
It happens all the time.
You have to declare in the sale what items are included with the purchase, they are called chattels.
Continue reading “Pay Attention to the Fine Print – Chattels”
When someone leaves you some cash, land, a turtle, behind in their will, who is on the hook for any outstanding debts?
It goes without saying, nowadays there are fewer and fewer people retiring with a mound of cash. Some of our elderly folks need to work well into their seventies, and even then they’ll end up racking up debt to stay afloat.
In a will a Executor is appointed over the estate to divvy everything up. But what happens when you have more debts than assets? Continue reading “On the Hook for Debts of an Estate?”
There’s a lot to be said about specific law practices. In fact, there are few ‘general’ practices. Unlike the trades, lawyers typically aren’t ‘Jack of all Trades’. One guy doesn’t specialize in all forms of law. Certainly, there is a general knowledge of other areas, but specialization is very real and something you should pay attention to when selecting an attorney. just going with someone’s cousin Guido doesn’t mean you’re a shoe in for success.
Confidential employees are excluded from collective bargaining because they might be able to give the union access to matters that the employers do not wish them to know about such as bargaing strategy, grievances, etc. (Canadian Union of Bank Employees v. Nova Scotia). That being said, confidential employees will only be excluded if there is a demonstrated conflict of interest (see test).
Managers are usually excluded from collective bargaining as it is a fundamental premise of labour law that there is a conflict of interest between management and workers (Children’s Aid Society). The most important factors in determining if an individual is a manager are: the power to discipline, the power to hire, promote, demote, and grant wage increases (Children’s Aid). In addition we look to see the discretion exercised by these individuals (Quebec Telephone), being sure to distinguish whether the discretion exercised is “real” discretion, or just implementation of a rubric or policy manual.
Some statutes exclude certain professional employees from collective bargaining, on the basis that these employees already enjoy a privileged economic position. Traditionally, public employees were excluded from collective bargaining but nowadays we see more public sector employees involved in collective bargaining. Often public employees are covered by special collective bargaining statutes which put certain restricts on the subject matter of collective bargaining.
An employer can dismiss an employee if there is a valid cause. The test for valid cause is if the employee dishonestly violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with the employee’s obligations to his or her employer (McKinley).
Constructive dismissal is a doctrine that states when an employer unilaterally and drastically alters the terms of an employee’s employment, the employee is entitled to quit their job and sue the employer from wrongful dismissal. In other words, an employer is not allowed to unilaterally change an employment contract, unless the employee explicitly accepts. If an employer continues to work even after the drastic change, this does not necessarily constitute acceptance. Bad faith is not a requirement for an employer to commit a repudiatory breach (Farber v. Royal Trust).
As per common law, there are certain terms that are implied to be in all employment contracts. Most notably, reasonable notice for wrongful dismissal. There is a rebuttal presumption that such a right exists, unless the employer can show evidence that the parties agreed otherwise. Based on the inherent power imbalance between employers and employees, ambiguous terms of employment contracts will be interpreted in a way that is favourable to the employee (Ceccol). An implied term is something that the employer and employee would have agreed to if they had sat down and had a chat at the beginning of the employment relationship (McNamara).
The common law contract of employment only applies to employees. Independent contractors are not subject to the common law protections of the common law contract of employment (because it is believed that independent contractors are better situated economically to protect their own interests). Thus the first threshold question is often to determine if the plaintiff is an employee. The leading test to distinguish employees from independent contractors is the Montreal v. Montreal Locomotive Works Test: